NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 6, 2025
S25A0336. NELSON v. THE STATE.
COLVIN, Justice.
Appellant Quillian Donta Nelson, who has been charged with
murder and related offenses in connection with the June 3, 2020
shooting death of Darwin Davis, appeals the denial of his motion to
dismiss his indictment based on a violation of his constitutional
right to a speedy trial. As explained below, we conclude that the trial
court’s ruling was based on several clearly erroneous findings of fact,
as well as misapplications of the law. Accordingly, we vacate the
trial court’s order and remand for further consideration of
Appellant’s motion to dismiss.
1. The record on appeal shows the following. Appellant was
arrested on June 5, 2020. On August 7, 2020, Appellant filed a preindictment demand for a speedy trial, invoking his right to a speedy
trial under the United States Constitution. More than 14 months
after his arrest, on August 23, 2021, a Fulton County grand jury
returned an indictment against Appellant, charging him with
murder and related offenses.
Appellant’s original defense attorney filed a motion for a
continuance on March 15, 2022, due to an unspecified “conflict that
w[ould] take precedence over” Appellant’s case, but the record does
not reflect whether the court ruled on the motion. On May 19, 2022,
defense counsel filed a notice that she would be on leave for personal
reasons for a total of 28 days between July 2022 and January 2023.
And on October 13, 2022, defense counsel filed a motion to withdraw,
which the court granted on January 3, 2023.
Substitute counsel for Appellant made an appearance in the
case on February 8, 2023. And the record reflects that, between
February 2023 and May 2024, Appellant’s new defense attorney
filed several notices regarding anticipated leaves of absence, which
reflected that she would be on leave for more than 80 days between
March 2023 and August 2024. Over that same period, the prosecutor
2
filed a notice that she intended to take leave for a total of nine days.
On July 10, 2023, Appellant filed a motion for permission to file
an out-of-time statutory demand for speedy trial under OCGA § 17-7-171 (a). In the motion, Appellant also said that he was making a
demand for a speedy trial “[p]ursuant to the Georgia Constitution.”
The trial court held a hearing on the motion on August 31,
2023. During the hearing, the court noted that the case had
appeared on the court’s trial calendars for January and June 2023.1
The court asked defense counsel what happened when the case
appeared on the trial calendar, and defense counsel responded that
she “believe[d]” she had “announced ready” for trial, but that the
case “was just never reached.” At a later hearing, however, defense
counsel clarified that the defense had not announced ready for trial
on January 3, 2023, when the case first appeared on the trial
1 The trial court was permitted to take judicial notice of its own trial
calendars, which are not contained in the record on appeal. See Brown v.
Citizens & S. Nat. Bank, 245 Ga. 515, 518 (265 SE2d 791) (1980) (concluding
that “the trial court was authorized to take judicial notice of the absence of the attorney’s name on the trial calendar” because “a court may take judicial notice
of its own records in the immediate case or proceedings before it”).
3
calendar, because that was the same day the court had granted
original counsel’s motion to withdraw. But defense counsel stated
that she had announced ready for trial when the case appeared on
the June 2023 and April 2024 trial calendars, and that the case
simply was not reached. The court noted that, if the case was not
reached, that meant other cases on the calendar were older or that
the court had determined, in its discretion, to prioritize other cases
over Appellant’s. On September 27, 2023, the trial court entered an
order denying the motion to file an out-of-time statutory demand for
a speedy trial.
On October 24, 2023, three years and four months after
Appellant’s arrest, Appellant moved to dismiss his indictment on
constitutional speedy-trial grounds, invoking his right to a speedy
trial under both the United States Constitution and the Georgia
Constitution. The court scheduled a virtual hearing on the motion
to dismiss for June 18, 2024, but Appellant requested that the court
reschedule the hearing to another date so the motion could be heard
in person.
4
On August 12, 2024, the court held a hearing on Appellant’s
motion to dismiss the indictment. Testifying at the hearing,
Appellant said that he had received inadequate medical care
throughout his four-year incarceration, that his requests for medical
attention had generally been ignored, and that the Sheriff’s
Department had not taken him to his medical appointments or given
him proper medication. In particular, he testified that he had
developed an infection due to a pre-arrest gunshot wound, and that,
about a month after his June 2020 arrest, the court had to order that
he receive medical treatment for the infection.2 Appellant further
testified that, in January 2023, prisoners attacked him while he was
sleeping and then stabbed him 36 times, after which he received
treatment at a hospital for a collapsed lung. According to Appellant,
a jail doctor later told him that he had Post-Traumatic Stress
Disorder (“PTSD”) as a result of the stabbing, but that he could not
be treated for PTSD inside the jail. When asked about his ability to
2 The record shows that, on July 10, 2020, the court ordered the Fulton
County Sheriff’s Department to ensure that Appellant received adequate and
proper medical care.
5
ask jail employees for help obtaining medical treatment, Appellant
responded only that the jail employees were “working with the
inmates” to commit “crimes” and were “sending [inmates] into dorms
to rob other [inmates] . . . , to beat them up, [and] to stab them.” And
he complained about inadequate sleeping arrangements, showering
facilities, and sanitation. Describing his incarceration generally,
Appellant said that it had been mentally, physically, and
emotionally painful.
On September 11, 2024, four years and three months after
Appellant’s arrest, the trial court denied Appellant’s motion to
dismiss the indictment on constitutional speedy-trial grounds.
Appellant timely applied for a certificate of immediate review, which
the trial court granted. And we granted Appellant’s application for
interlocutory appeal.3
2. Appellant argues that the trial court abused its discretion in
denying his motion to dismiss his indictment on constitutional
3 After we granted the application, Appellant timely filed a notice of
appeal. The case was docketed to this Court’s term beginning in December
2024 and submitted for a decision on the briefs.
6
speedy-trial grounds because the court’s ruling was based on errors
of both fact and law. We agree, as explained below.
“The Sixth Amendment of the United States Constitution
guarantees that, in all criminal prosecutions, the accused shall enjoy
the right to a speedy trial.” Rafi v. State, 289 Ga. 716, 716 (2) (715
SE2d 113) (2011) (citation and punctuation omitted). “This right is
enshrined in the Georgia Constitution and is co-extensive with the
federal guarantee made applicable to the states by virtue of the
Fourteenth Amendment of the United States Constitution.” Id.
(citation and punctuation omitted). Constitutional speedy-trial
claims are analyzed under the two-step Barker-Doggett framework.
See id. at 716-717 (2) (citing Barker v. Wingo, 407 U.S. 514 (92 SCt
2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U.S.
647 (112 SCt 2686, 120 LE2d 520) (1992)). At the first step, “the trial
court must determine whether the delay at issue was sufficiently
long to be considered presumptively prejudicial.” Palmer v. State,
318 Ga. 511, 516 (2) (899 SE2d 192) (2024). If so, the trial court
proceeds to the second step, which “requires the application of a
7
[four-factor,] context-sensitive balancing test to determine whether
the defendant has been deprived of his right to a speedy trial.” Id.
Specifically, the court must consider the following factors: “(1) the
length of the delay; (2) the reason for the delay; (3) the defendant’s
assertion of the right; and (4) prejudice to the defendant from the
delay.” Id.
Because “[a]pplication of the Barker-Doggett balancing test to
particular cases is committed to the sound discretion of the trial
courts,” this Court “accept[s] the trial court’s factual findings unless
they are clearly erroneous, and we review the trial court’s evaluation
of each factor and its balancing of the factors — its ultimate
judgment — only for abuse of discretion.” Palmer, 318 Ga. at 516 (2)
(citation and punctuation omitted). “[I]f the trial court’s factual
findings are clearly erroneous or the trial court significantly
misapplies the law,” we will affirm the trial court’s exercise of
discretion “only if [we] can conclude that, had the trial court used
the correct factual and legal analysis, it would have had no
discretion to reach a different judgment.” Redding v. State, 318 Ga.
8
225, 227 (1) (897 SE2d 801) (2024) (citation and punctuation
omitted). “If the trial court would still have discretion to reach a
different judgment, we remand for the trial court to reweigh the
factors and exercise its discretion using the correct factual and legal
analysis.” Id.
In this case, the trial court began its analysis by finding that
the “[l]ength of [d]elay” was “presumptively prejudicial” because
“the case ha[d] been pending more than one year,” and that “an
analysis into the remaining factors in the four-factor analysis” was
therefore “require[d].” Turning next to the reason-for-the-delay
factor, the court found that the factor was neutral and did not weigh
against either party because the trial had been delayed due to the
COVID-19 pandemic and “[d]efense [counsel’s] requested
continuances based on approved leave for trial calendars.” The court
weighed the assertion-of-the-right factor against Appellant, finding
that he “failed to [timely] assert his statutory right to a speedy trial,”
and that he also failed to “timely” assert his “constitutional right to
a speedy trial” because he first asserted that right “three years after
9
arrest and two years after [i]ndictment.” The trial court also
weighed the prejudice factor against Appellant, concluding that he
had not provided any evidence that the delay impaired his ability to
defend himself, and that he had “failed to show actual anxiety and
concern with specific evidence of how the delay impaired his ability
to defend himself as required under Johnson v. State, 268 Ga. 416
(1997).” Finally, considering the factors together, the court
concluded that, “[a]lthough the length of delay [was] presumptively
prejudicial, [Appellant] ha[d] failed to meet the other three factors”
because one of the three factors did not weigh against either party
and the other two factors weighed against Appellant.
(a) It is undisputed on appeal, and we agree, that the trial court
correctly determined that a presumption of prejudice arose in this
case. Appellant was detained for more than four years without his
case being brought to trial, and “a delay greater than one year is
typically presumed to be prejudicial.” McCullum v. State, 318 Ga.
485, 495 (4) (899 SE2d 171) (2024) (citation and punctuation
omitted). See also Palmer, 318 Ga. at 516 (2) (a) (i) (“[T]he length of
10
the delay ordinarily is measured from the earlier of the date of the
defendant’s arrest or indictment (or other formal accusation) to the
date that his trial started.”). As explained below, however, the trial
court made significant factual and legal errors in assessing the four
Barker-Doggett factors.
(b) “The length of the pretrial delay in absolute terms plays a
role in the threshold determination of presumptive prejudice.”
Redding, 318 Ga. at 227 (2) (a) (citation and punctuation omitted;
emphasis in original). “However, it also wears another hat as one of
the four interrelated criteria that must be weighed in the balance at
the second stage of the Barker-Doggett analysis.” Id. (citation and
punctuation omitted). “While similar, the presumptive prejudice
threshold and the length-of-delay factor are separate inquiries.” Id.
“In considering the length of the delay, a court must consider
whether delay before trial was uncommonly long” and must
“assign[ ] weight” to this factor. Id. at 227-228 (2) (a), 232 (2) (e)
(citation and punctuation omitted).
Here, however, the trial court considered the length of the
11
delay only with regard to the presumption of prejudice and gave no
consideration to the length-of-the-delay factor: the court did not
calculate the length of the delay, address whether the delay was
uncommonly long, or assign weight to the length-of-the-delay factor.
See Redding v. State, 313 Ga. 730, 732, 735-736 (2) (873 SE2d 158)
(2022) (vacating and remanding where the trial court “did not
explicitly calculate the length of the delay,” did not “consider[ ] [the
length-of-the-delay factor] separately,” and “failed to weigh each
Barker factor”). See also Goins v. State, 306 Ga. 55, 57-58 (2) (b) (829
SE2d 89) (2019) (“[W]e have explained that it is imperative that the
trial court enter findings of fact and conclusions of law consistent
with Barker” because, “[a]bsent such findings, there is no exercise of
discretion for this Court to review.” (citations and punctuation
omitted)). Instead, the trial court conflated the presumption-ofprejudice inquiry at step one of the Barker-Doggett framework with
the length-of-the-delay factor at step two of the framework, stating
with respect to the “[l]ength of [d]elay” factor only that the delay was
“presumptively prejudicial.” In equating these distinct inquiries and
12
failing to give any consideration to the length-of-the-delay factor, the
trial court “significantly misapplie[d] the law.” Redding, 318 Ga. at
227 (1), (2) (a) (citation and punctuation omitted).
(c) In considering the reason-for-the-delay factor, “the trial
court must consider which party was responsible for the delay,
whether the delay was intentional, and, if it was intentional, what
the motive was for seeking or causing the delay.” Redding, 318 Ga.
at 228 (2) (b) (citation and punctuation omitted). “As to the amount
of weight assigned to this factor, different weights should be
assigned to different reasons.” Id. (citation and punctuation
omitted). For example, “[a] deliberate attempt to delay the trial in
order to hamper the defense should be weighted heavily against the
government,” whereas “an unintentional delay, such as that caused
by the prosecuting attorney’s mere negligence or the trial court’s
overcrowded docket, should be weighted less heavily [against the
government].” Id. at 228-229 (2) (b) (citation and punctuation
omitted). And, “[o]f course, [any] delay caused by the defense weighs
against the defendant.” Id. at 229 (2) (b) (citation and punctuation
13
omitted).
The trial court here attributed the delay to two factors: the
COVID-19 pandemic and defense counsel’s requests for
continuances to take leaves of absence. On appeal, Appellant does
not challenge the weight that the trial court afforded to the portion
of the delay attributable to the COVID-19 pandemic and the related
judicial-emergency order. 4 But Appellant correctly argues that the
4 During the August 12, 2024 hearing, defense counsel conceded that the
delay caused by the COVID-19 pandemic and the associated judicialemergency order was “a nullity in terms of [the court’s] assessment” that “can’t
be weighed” against either party. Because Appellant conceded that point below
and does not raise the issue on appeal, we need not decide here whether the
Court of Appeals cases addressing COVID-19-related delays in the speedy-trial
context are correct. See Smith v. State, 373 Ga. App. 33, 41 (II) (b) (i) (907 SE2d 327) (2024) (“Neither party is responsible for the delays caused by the COVID19 pandemic,” and “delay during the judicial emergency declared during the
COVID-19 pandemic should be considered a neutral factor under the BarkerDoggett framework, not weighted against either party.”); Foreman v. State, 371
Ga. App. 838, 845 (1) (b) (ii) (903 SE2d 303) (2024) (holding that “a delay caused by the COVID-related judicial emergency may not be weighted against either
party”); Shriver v. State, 371 Ga. App. 580, 584 (2) (901 SE2d 721) (2024)
(“[T]he State cannot be faulted for the periods in 2020 and 2021 during which
no jury trials were held, and the delays caused by overcrowded dockets
following the resumption of jury trials are not entitled to significant weight.”); State v. Adams, 364 Ga. App. 864, 868 (2) (b) (i) (876 SE2d 719) (2022) (“[T]he
delay of just under 16 months attributable to the [COVID-19-related]
statewide judicial emergency is not weighed against either party.”); Labbee v.
State, 362 Ga. App. 558, 566-567 (2) (b) (iv) (869 SE2d 520) (2022) (holding that
“neither party is responsible for the delays caused by the COVID-19 pandemic”
14
trial court clearly erred to the extent that it found that the trial was
delayed due to defense counsel’s requests for continuances of the
trial to take leaves of absence. The record shows that, although
defense counsel filed several notices regarding leaves of absence,
those notices did not include requests to delay the trial. See Redding,
318 Ga. at 229-230 (2) (b), (c) (holding that the record did not support
a finding that the defendant had contributed to the delay because,
although the defendant requested additional time to prepare for his
probation revocation and defense counsel asked to reschedule a
calendar call due to a vacation, the defendant “never requested a
delay of trial” (emphasis in original)). The record contains only one
request for a continuance filed by defense counsel, which was sought
for an unspecified reason. And there is no indication in the record
that the request was granted, such that it could have contributed to
the delay of trial.
because “the pandemic is a catastrophic and unique event beyond either party’s
control,” and that, “even if the State can be said to have caused the pandemicrelated delay by suspending jury trials, the delay was justified and
appropriate” and therefore “should not be weighed against the State” (citations
and punctuation omitted)).
15
Further, although “defense [counsel’s] requests for leaves of
absences may be considered in determining the reason for the
delay,” Cash v. State, 307 Ga. 510, 517 (2) (a) (ii) (837 SE2d 280)
(2019), it is unclear here whether the trial court found that defense
counsel’s leaves of absence themselves (as opposed to the purported
continuances granted for leaves of absence) contributed to the delay
in bringing the case to trial. And “[i]t is not the role of an appellate
court to weigh the Barker factors in the first instance.” Redding, 313
Ga. at 735 (2).5
(d) In assessing the assertion-of-the-right factor, the trial court
must consider “whether the defendant asserted the right to a speedy
trial in due course.” Redding, 318 Ga. at 229 (2) (c) (citation and
punctuation omitted). “This factor focuses on the timing, form, and
vigor of the accused’s demands to be tried immediately.” Id. (citation
and punctuation omitted). “Although an accused need not demand a
trial at the first available opportunity, his failure to assert his right
5 On remand, the trial court should also consider whether Appellant’s
substitution of counsel contributed to the delay. We express no opinion on that
issue.
16
with reasonable promptness will ordinarily weigh heavily against
him.” Id. (citation and punctuation omitted).
On appeal, Appellant contends that the trial court abused its
discretion in weighing the assertion-of-the-right factor against him
based on a clearly erroneous finding that he first asserted his
constitutional right to a speedy trial three years after his arrest and
two years after his indictment. We agree that this factual finding
was clearly erroneous, as the record shows that Appellant timely
asserted his constitutional right to a speedy trial two months after
he was arrested, before he was indicted. See State v. Pickett, 288 Ga.
674, 676 (2) (c) (3) (706 SE2d 561) (2011) (“[A] defendant may assert
his constitutional right to a speedy trial at any time after he is
arrested; he need not wait until indictment.”). The trial court was
not required to afford significant weight to Appellant’s preindictment demand for a speedy trial. See Barker, 407 U.S. at 529
(III) (noting that a court need not “attach[ ] significant weight to a
purely pro forma” demand for speedy trial). But the clearly
erroneous finding that Appellant did not timely file a constitutional
17
demand for a speedy trial played a central role in the trial court’s
decision to weigh this factor against Appellant, and the court may
have weighed the factor differently absent this error.
(e) There are “three types of prejudice that are relevant” in
assessing whether a defendant has suffered prejudice from a delay
in bringing his case to trial: (1) “oppressive pretrial incarceration,”
(2) “anxiety and concern” of the defendant and (3) “impairment of
the accused’s ability to defend against the charges due to dimming
memories and loss of exculpatory evidence.” Palmer, 318 Ga. at 523
(2) (b) (iv). For the first two types of prejudice to weigh in favor of a
defendant, the defendant must introduce evidence of “oppressive
pretrial incarceration or anxiety and concern” that goes “beyond that
which necessarily attends confinement in a penal institution.”
Harris v. State, 284 Ga. 455, 456 (667 SE2d 361) (2008) (citation and
punctuation omitted). See also Jackson v. State, 272 Ga. 782, 786-787 (534 SE2d 796) (2000) (noting that establishing oppressive
pretrial incarceration requires “proof of sub-standard conditions or
other oppressive factors beyond those that necessarily attend
18
imprisonment” (citation and punctuation omitted)).
On appeal, Appellant “concedes that the passage of time has
not resulted in any demonstrative impairment to his ability to
prepare and present his defense.” But he argues that the trial court
abused its discretion by failing to consider his testimony from the
August 12, 2024 hearing, which he contends provided evidence that
he suffered prejudice from delay based on oppressive pretrial
incarceration and anxiety and concern. We agree that the trial court
erred in failing to consider that evidence.
As an initial matter, it appears that the trial court believed
that this Court’s statement in Johnson that “[the defendant] must
show actual anxiety and concern and specific evidence of how the
delay impaired his ability to defend himself,” Johnson, 268 Ga. at
418 (2), rendered evidence of oppressive jail conditions and anxiety
and concern irrelevant. But the trial court misread Johnson,
misquoting the case as having said that a defendant must “show
actual anxiety and concern with specific evidence of how the delay
impaired his ability to defend himself,” and taking this one
19
statement out of context. (Emphasis supplied.)
In fact, Johnson expressly identified “oppressive pretrial
incarceration” and “anxiety and concern of the defendant” as two of
the three factors that a court is “require[d]” to consider in assessing
prejudice from a delay in bringing a case to trial. Johnson, 268 Ga.
at 417 (2). And in analyzing the prejudice from delay, Johnson
considered the evidence — or lack thereof — relevant to each of the
three prejudice factors. Johnson began its analysis by concluding
that the length of the defendant’s detention, standing alone, did not
show that the defendant suffered prejudice from oppressive pretrial
incarceration. See id. at 418 (2) (citing Boseman v. State, 263 Ga.
730 (438 SE2d 626) (1994), for the proposition that “a 21-month
delay is insufficient to raise an inference of actual prejudice”);
Boseman, 263 Ga. at 733 (1) (d) (noting that, “[w]ith regard to . . .
oppressive pretrial incarceration, . . . the 27 month delay, standing
alone, was oppressive,” but “that pretrial detention alone [does not]
permit[ ] an automatic inference of enough prejudice to balance that
factor in a defendant’s favor without proof of sub-standard
20
conditions or other oppressive factors beyond those that necessarily
attend imprisonment.” (citations and punctuation omitted)),
overruled on other grounds by Sosniak v. State, 292 Ga. 35 (734
SE2d 362) (2012). Johnson noted that, as a result, the prejudice
factor could not weigh in the defendant’s favor absent evidence that
the defendant suffered “actual anxiety and concern” or an “impaired
. . . ability to defend himself.” Johnson, 268 Ga. at 418 (2). And as to
those factors, Johnson concluded that “[t]here [was] no evidence in
the record of [the defendant’s] anxiety or concern” and “no evidence”
to support the defendant’s “speculat[ion]” that the delay impaired
his defense. Id. In other words, Johnson determined that neither
oppressive pretrial incarceration nor anxiety and concern prejudiced
the defendant because there was insufficient evidence regarding
those factors, not because those factors did not matter. The trial
court therefore erred here in concluding that Johnson authorized it
to disregard entirely any evidence of oppressive pretrial
incarceration or anxiety and concern.
Here, Appellant testified about the nature of his pretrial
21
incarceration, as well as the anxiety and concern he experienced
while incarcerated. If credited, some of that testimony —
particularly his testimony about being unable to get treatment for a
serious medical condition without a court order, about suffering a
brutal stabbing while incarcerated, and about jail employees
participating in violent crimes against detainees — could have
supported a finding that he suffered “oppressive pretrial
incarceration or anxiety and concern beyond that which necessarily
attends confinement in a penal institution.” Harris, 284 Ga. at 456
(citation and punctuation omitted).
The trial court was not required to credit Appellant’s
testimony. See Davis v. State, 315 Ga. 252, 259 (2) (d) (iv) (882 SE2d
210) (2022) (trial court did not clearly err in discrediting the
defendant’s testimony about jail conditions and his anxiety due to
incarceration where there was no “contemporaneous documentation
of [the defendant’s] complaints about jail conditions” and the court
found that the defendant “was obviously exaggerating in his
testimony” (punctuation omitted)). But the court’s order indicates
22
that it disregarded Appellant’s testimony based on a misreading of
Johnson, not based on a negative credibility finding. And the trial
court may have weighed this factor differently if it had properly
considered all of the evidence of record, including Appellant’s
testimony.
(f) In sum, the trial court failed to make any findings with
respect to the length-of-the-delay factor or to assign that factor
weight; the court made “factual findings [that were] clearly
erroneous” with respect to the reason-for-the-delay and the
assertion-of-the-right factors; and the court “significantly
misapplie[d] the law” regarding the prejudice factor. Redding, 318
Ga. at 227 (1) (citation and punctuation omitted). Because the trial
court would not have been compelled to deny Appellant’s motion to
dismiss if it had used the correct factual and legal analysis, we
vacate the trial court’s order denying Appellant’s motion to dismiss
the indictment on constitutional speedy-trial grounds and remand
for further consideration of the motion consistent with this opinion.
See id. at 232-333 (2) (e) (vacating and remanding because, “[w]hile
23
the trial court may be authorized to deny [the defendant’s] speedytrial motion after assigning weight and balancing anew the four
factors in accordance with the applicable law and directions outlined
in this opinion, we [could not] say the trial court [was] necessarily
compelled to do so” (footnote omitted)).
Judgment vacated and case remanded. Peterson, CJ, Warren,
PJ, and Bethel, Ellington, McMillian, and Pinson, JJ, concur.
LaGrua, J, disqualified.
24
PETERSON, Chief Justice, concurring.
I join the Court’s opinion in full. I write separately to point out
that our speedy-trial caselaw appears to have gone astray.
Specifically, over time we appear to have adopted too high a
standard for the prejudice a defendant who is incarcerated pre-trial
must demonstrate in order to secure dismissal of an indictment
against him on constitutional speedy-trial grounds. In an
appropriate case, we should reconsider that precedent, the logic of
which would suggest that there is no speedy-trial problem with
leaving an innocent-until-proven-guilty defendant in jail without
trial for decades so long as they’re not mistreated there.
The United States Supreme Court has identified three
interests the constitutional right to a speedy trial “was designed to
protect”: “to prevent oppressive pretrial incarceration[,]” “to
minimize anxiety and concern of the accused[,]” and “to limit the
possibility that the defense will be impaired.” Barker v. Wingo, 407
U.S. 514, 532 (92 SCt 2182, 33 LE2d 101) (1972); see also Doggett v.
United States, 505 U.S. 647, 654 (112 SCt 2686, 120 LE2d 520)
25
(1992). The Supreme Court has said that “[o]f these forms of
prejudice, the most serious is the last, because the inability of a
defendant adequately to prepare his case skews the fairness of the
entire system.” Doggett, 505 U.S. at 654 (citation and punctuation
omitted). But it also has made clear that “prejudice to a defendant
caused by delay in bringing him to trial is not confined to the
possible prejudice to his defense in those proceedings.” Moore v.
Arizona, 414 U.S. 25, 26-27 (94 SCt 188, 38 LE2d 183) (1973).
Indeed, there is some evidence that as a matter of original meaning
the speedy-trial right primarily protects the accused from prolonged
detention without an adjudication of guilt. See United States v.
Olsen, 21 F4th 1036, 1059-1064 (9th Cir. 2022) (Bumatay, J.,
concurring in the denial of rehearing en banc).
Moreover, the Supreme Court has “expressly rejected the
notion that an affirmative demonstration of prejudice [is] necessary
to prove a denial of the constitutional right to a speedy trial,” saying
that none of the four factors that comprise the Barker-Doggett
framework is “‘either a necessary or sufficient condition to the
26
finding of a deprivation of the right of speedy trial. Rather, they are
related factors and must be considered together with such other
circumstances as may be relevant.’” Moore, 414 U.S. at 26 (quoting
Barker, 407 U.S. at 533). Because many speedy-trial claims do not
involve pre-trial incarceration, see, e.g., Doggett, 505 U.S. at 654-658 (considering prejudice from eight-and-a-half-year lag between
indictment and arrest), one critical consideration is whether the
accused is in fact incarcerated prior to trial. See United States v.
Garcia, 59 F4th 1059, 1069 (10th Cir. 2023) (noting that “because
the seriousness of a post-accusation delay worsens when the wait is
accompanied by pretrial incarceration, oppressive pretrial
incarceration is the second most important” of the possible forms of
prejudice the speedy-trial right guards against (citation and
punctuation omitted)).
It seems to me that the question of whether that pre-trial
incarceration is sufficiently “oppressive” to be prejudicial turns not
only on the conditions of that incarceration, but also separately on
how long a defendant is being held without trial. This is consistent
27
with federal caselaw saying that long pre-trial incarceration alone
can be prejudicial. See Garcia, 59 F4th at 1069 (“Some cases of
extreme delay excuse the defendant’s obligation under this factor to
show specific evidence of prejudice, but generally the court requires
at least a six-year delay before allowing the delay itself to constitute
prejudice.”); United States v. Black, 918 F3d 243, 265-266 (2d Cir.
2019) (noting that “sheer length of time at issue here” — five years
and eight months of pre-trial detention — “makes this pre-trial
detention egregiously oppressive” before finding speedy-trial
violation despite only “modest” effect on the defendants’ defense
(citation and punctuation omitted)); United States v. Dunn, 345 F3d
1285, 1297 (11th Cir. 2003) (suggesting that defendant could
establish prejudice by showing that his defense was harmed or that
“the conditions under which he was held or the length of his
confinement rendered the delay a constitutional violation”
(emphasis supplied)); Hakeem v. Beyer, 990 F2d 750, 762 (3d Cir.
1993) (noting that “time alone may, in some cases, rise of the level
of oppressive pretrial incarceration” before finding that defendant
28
could not prevail based on oppressive incarceration given that that,
upon conviction, defendant received credit for all of the pre-trial
time he had served and he had “not pointed to any evidence of
additional, specific prejudice flowing from the delay” (citation and
punctuation omitted)).6 Additionally, I note that federal courts,
including the Supreme Court, have concluded that substantial
delays in bringing a case to trial — even without pre-trial
incarceration — are presumptively prejudicial to the defense. See,
e.g., Doggett, 505 U.S. at 657-658 (eight-and-a-half-year delay from
indictment to arrest, with six years attributable to the government,
6 A number of post-conviction federal cases considering speedy trial
claims have found lengthy pre-trial incarceration not prejudicial where the
defendant received credit for time served on his sentence. See, e.g., United
States v. Frye, 489 F3d 201, 213 (5th Cir. 2007) (“A lengthy pretrial
incarceration does not inherently offend a defendant’s liberty interests. See,
e.g., Gray v. King, 724 F2d 1199, 1204 (5th Cir. 1984) (finding no oppressive
pretrial incarceration where defendant received credit for pretrial
incarceration to be applied [to] his sentence). Frye was ultimately sentenced to
life in prison without the possibility of release. Therefore, Frye, like the
defendant in Gray, did not suffer any increase in his total time spent in prison
as the result of pretrial delays.”). But those post-conviction cases can have no
relevance to pre-trial speedy-trial claims like the one here, in which the
Constitution’s presumption of innocence prevents a reviewing court from
assuming that there will be an eventual sentence on which to afford credit for
time served.
29
required grant of motion even absent proof of effect on defense);
United States v. Mendoza, 530 F3d 758, 764-765 (9th Cir. 2008)
(government did not rebut strong presumption of prejudice from
eight-and-a-half-year delay between indictment and arrest during
which the government did not exercise due diligence in finding the
defendant). If a substantial delay in bringing the case to trial where
the defendant is not incarcerated can constitute prejudice, then
surely some substantial period of incarceration can itself constitute
prejudice to support dismissal — after consideration of all of the
Barker-Doggett factors — on speedy-trial grounds.
Despite all of this, we have said that in order to show
“oppressive” pre-trial incarceration, a defendant must show
something more than a lengthy pre-trial incarceration. See, e.g.,
Redding v. State, 318 Ga. 225, 231-232 (2) (d) (897 SE2d 801) (2024)
(concluding in case involving presumptively prejudicial 25-month
delay that trial court did not err in weighing the prejudice factor
heavily against defendant, given that defendant failed to show
prejudice from loss of witness and presented “no specific showing” of
30
oppressive incarceration or anxiety and concern of the accused);
Davis v. State, 315 Ga. 252, 259 (2) (d) (iv) (882 SE2d 210) (2022)
(concluding in case involving presumptively prejudicial 30-month
delay that trial court did not abuse its discretion in determining that
defendant failed to establish actual prejudice given the trial court’s
assessment that defendant was “obviously exaggerat[ing]” in his
testimony about conditions at the Fulton County jail and had not
provided any “contemporaneous documentation” of his complaints);
State v. Johnson, 291 Ga. 863, 867 (2) (d) (734 SE2d 12) (2012)
(concluding in case involving presumptively prejudicial five-year
delay between arrest and dismissal of indictment that, although
“prejudice properly may be presumed in this case from the length of
the pretrial delay[,]” trial court findings that defendant was
subjected to oppressive pretrial incarceration and experienced
unusual anxiety as a result of his prosecution and incarceration
were erroneous given that he had made no showing that he had been
subjected to “substandard” jail conditions and or an “unusual
showing” about anxiety and concern); Weis v. State, 287 Ga. 46, 54
31
(1) (d) (694 SE2d 350) (2010) (concluding in case involving
presumptively prejudicial three-and-a-half year period from the
date of defendant’s arrest to the case being put on the trial calendar
that “there has been no oppressive pre-trial incarceration, as Weis
has made no showing that he has been subjected to substandard
conditions in the county jail where he has been housed.”); Ruffin v.
State, 284 Ga. 52, 57-58 (2) (b) (i), 65 (2) (b) (iv) (663 SE2d 189) (2008)
(trial court properly weighed prejudice factor against defendant who
did not show either impairment of his defense or “oppressive pretrial
incarceration of anxiety and concern beyond that which necessarily
attends confinement in a penal institution[,]” despite fact that pretrial delay of two years, two months, and twenty-three days, with
defendant in jail for all but about three months of that time, was
“unusual even in comparison with other non-capital murder cases”);
Jackson v. State, 272 Ga. 782, 785 (534 SE2d 796) (2000) (defendant
who experienced “unquestionably burdensome” pre-trial
incarceration of nearly two years nonetheless “failed to swing the
balance of prejudice in his favor” given that he “failed to offer the
32
specific evidence required to support his general claims of anxiety,
poor conditions in the Fulton County jail, and that his defense may
be impaired by the delay”); but see Williams v. State, 277 Ga. 598,
600-601 (1) (d) (592 SE2d 848) (2004) (trial court correctly found that
defendant “had failed to show any particular form of prejudice other
than the mere fact of his” more than five-year pre-trial incarceration
but erred to the extent that it found that this failure weighed heavily
against the defendant, “in light of the extraordinarily long delay” in
bringing case to trial).
In some of these decisions, we did not cite any authority for the
notion that a defendant must show something more than typical
conditions of incarceration in order for their pre-trial incarceration
to be considered “oppressive” for purposes of showing prejudice from
pre-trial delay. See Weis, 287 Ga. at 54 (1) (d); Ruffin, 284 Ga. at 65
(2) (b) (iv). In other cases, we have allowed holdings on particular
facts to morph into a bright-line rule.
In Boseman v. State, 263 Ga. 730 (438 SE2d 626) (1994),
overruled on other grounds by Sosniak v. State, 292 Ga. 35, 40 (2)
33
(734 SE2d 362) (2012), we said we would assume that a 27-month
delay was “oppressive,” while noting that “other courts have
declined to hold that pretrial detention alone ‘permits an automatic
inference of enough prejudice to balance that factor in [a
defendant’s] favor without proof of sub-standard conditions or other
oppressive factors beyond those that necessarily attend
imprisonment.’” Boseman, 263 Ga. at 733 (1) (d). For this
proposition, we cited only a Third Circuit case, Hakeem v. Beyer. But
Hakeem, although it cited Third Circuit caselaw for the proposition
that “[t]he seriousness of a deprivation of pretrial incarceration will
vary with the conditions of the defendant’s confinement[,]” held
merely that “pretrial detention, coupled with a fourteen and one-half
month delay” does not permit such an “automatic inference of
enough prejudice to balance that factor in a petitioner’s favor
without proof of sub-standard conditions or other oppressive factors
beyond those that necessarily attend imprisonment.” 990 F2d at 761
(punctuation and citation omitted; emphasis supplied). Hakeem
thus did not hold that no length of pre-trial incarceration would be
34
sufficient to establish prejudice on its own, only that it was not
sufficient in that case.
And yet, in Johnson v. State, 268 Ga. 416 (490 SE2d 91) (1997),
we characterized Boseman as having held that a “27-month delay
does not raise [an] inference of prejudice” and relied on that to
conclude that “a 21-month delay is insufficient to raise an inference
of actual prejudice.” Johnson, 268 Ga. at 418 (2). We relied on
Boseman for the proposition that “[t]hus, Johnson must show actual
anxiety and concern and specific evidence of how the delay impaired
his ability to defend himself.” Johnson, 268 Ga. at 418 (2). We later
cited Johnson for that proposition in a case in which we assumed
that a 25-month delay constituted “oppressive pretrial
incarceration” but nonetheless concluded that the prejudice factor
favored the State given the defendant’s failure “to show that he
suffered undue anxiety or concern attendant to that incarceration”
or offer specific evidence of impairment of his defense. Mullinax v.
State, 273 Ga. 756, 759 (2) (545 SE2d 891) (2001).
And in Jackson, we cited Boseman for the proposition that a
35
27-month delay (which we assumed was oppressive in Boseman)
“does not automatically establish prejudice in the defendant’s favor
for purposes of the Barker analysis absent ‘proof of sub-standard
conditions or other oppressive factors beyond those that necessarily
attend imprisonment[,]’” and thus concluded that a defendant could
not show prejudice from a nearly two-year period of pre-trial
incarceration given that he had “failed to offer the specific evidence
required to support his general claims of anxiety, poor conditions at
the Fulton County jail, and that his defense may be impaired by the
delay[.]” Jackson, 272 Ga. at 785. We since have cited Jackson as
standing for the general rule that “to show oppressiveness,
defendant must offer specific ‘proof of sub-standard conditions or
other oppressive factors beyond those that necessarily attend
imprisonment[.]’” Davis, 315 Ga. at 259 (2) (d) (iv). In short, we seem
to have turned holdings about particular facts into a bright-line rule
that even lengthy pre-trial incarceration can never be prejudicial
without more. Such a rule is obviously wrong; it suggests that the
right to a speedy trial does not prevent leaving an innocent-until36
proven-guilty defendant in jail without trial for decades so long as
they’re not mistreated there. And none of our cases have ever cited
any authority that actually explains why our bright-line rule could
be correct.7
But Nelson does not ask us to reconsider our caselaw, in large
part because — as the Court’s opinion ably explains — he has
presented evidence of more than merely a lengthy incarceration.
Indeed, his testimony that he has been violently assaulted during
his confinement 8 and denied medical care absent a court order is
7 It’s worth noting, too, that in articulating the harms an accused suffers
as a result of pre-trial incarceration, aside from the manner in which it hinders
the preparation of his defense, the Supreme Court has described those harms
in terms that seem quaint given modern jail conditions in at least some
portions of this state: “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. Most jails offer little or no recreational or
rehabilitative programs. The time spent in jail is simply dead time.” Barker,
407 U.S. at 532-533 (footnote omitted). Thus, our assumption that a defendant
must show something more than lengthy pre-trial incarceration in order to
show “oppressive” incarceration may also be based on outmoded assumptions
about what entails “factors beyond those that necessarily attend
imprisonment.” And to the extent that we do require a defendant to make such
a showing, we should assume that evidence that a pre-trial detainee is
experiencing conditions of detention qualitatively worse than the “enforce[d]
idleness” described in Barker constitutes evidence of “oppressive”
incarceration.
8 The Georgia Constitution explicitly protects the right not to be abused
37
particularly disturbing and — as the Court’s opinion today
recognizes — necessary for the trial court to consider in its speedytrial analysis on remand. But when the issue is properly presented,
we should examine our precedent regarding what is necessary to
show prejudice for purposes of the Barker factors.
In the meantime, where, as here, the case has yet to be tried, a
remand for a new order such as that we issue today further delays
the trial of the case. This means that a defendant — who stands
merely charged, not convicted — continues to sit in jail. And “in
evaluating the presumptive prejudice that is caused simply by the
passage of time, courts look to the total elapsed time since the
speedy trial rights attached, and that time is increasing with every
passing day.” Phan v. State, 287 Ga. 697, 701 (699 SE2d 9) (2010)
(Nahmias, J., concurring). Thus, any delay in the issuance of a new
order itself may strengthen the case for dismissal. See Williams v.
State, 277 Ga. 598, 601 (1) (d) (2004) (592 SE2d 848) (2004)
while incarcerated. See Ga. Const. of 1983, Art. I, Sec. I, Para. XVII (“nor shall any person be abused in being arrested, while under arrest, or in prison”).
38
(“[G]reater pretrial delays simultaneously increase the degree of
prejudice presumed and decrease the expectation that the defendant
can demonstrate tangible prejudice to his or her ability to present a
defense.”). “In short, after this case is remanded, time will not be on
the State’s side[.]” Phan, 287 Ga. at 701 (Nahmias, J., concurring);
see also Ruffin, 284 Ga. at 66 (3) (noting in affirming denial of
motion to dismiss on speedy-trial grounds that “the clock is still
ticking” and “any further delay in bringing [defendant] to trial not
attributable to [defendant] runs a serious risk of violating
[defendant’s] right to speedy trial”).
39