dissenting in part and concurring in part:
My disagreement with the majority stems from the majority's insistence that the district court issue a writ which would discharge Burkett’s conviction under Criminal Actions Nos. 140 and 141. I disagree in three respects.
First, I believe that the majority has erroneously relied on a “law of the case” doctrine to find that Burkett has carried his burden of demonstrating prejudice. Second, because I believe that the majority has erred in this respect, I cannot agree with the majority's decision to decline to reach the issue of whether a court can find a post-verdict speedy trial violation without first finding that the defendant was prejudiced by the post-verdict delay. I conclude that a finding of prejudice is crucial not only to the legal conclusion that a speedy trial violation has resulted from a post-conviction sentencing delay, but also to the determination of the remedy to be imposed. Third, I conclude that it is the district court, not this court, which must decide in the first instance, not only whether Burkett has carried his burden of demonstrating prejudice, but also what remedy is appropriate if a speedy trial violation is found.
I.
The majority has concluded that Burkett has been prejudiced by his sentencing delay and that this prejudice has been established as the “law of the case.” Maj.Op., at 1222. The majority “discovers” prejudice from the fact that, in March 1985, a magistrate, without a hearing or other evidence before him, speculated that it would “appear reasonable to conclude” that the delay caused some loss to Burkett even though Burkett had been incarcerated on two unrelated convictions for 16 to 32 and 22 to 44 years. Supplemental Appendix at 11. Incredibly, the finding of prejudice, according to the majority, is disclosed by the order, entered May 30, 1985, which dismissed Burkett’s writ!
To my mind, the magistrate’s report, when read as a whole, contained nothing that properly could be termed a finding that prejudice was demonstrated, and, to the limited extent that the magistrate even discussed prejudice, his argument was unsound and unsupported by evidence. The magistrate argued that although one might reasonably conclude that there was some prejudice present, the degree of prejudice *1229did not appear to him to be particularly great in comparison to other cases.1
Even if I were to conclude, as does the majority, that the vague language from the magistrate’s report constituted a “finding” of the existence of prejudice, such a finding would have to be reversed on appeal as a conclusory “finding” that is completely unsupported by evidence. The magistrate conducted no hearings and took no testimony concerning, for example, whether prosecuting Burkett’s appeal has been made more difficult by the delay. Moreover, I suggest that it is impossible, if not outrageous, to conclude, as apparently the majority has, that an individual who is already incarcerated on two unrelated charges (and is serving a term of at least 22 years) is prejudiced as a matter of law by being subjected to a delay (even one of five and one-half years) while awaiting a sentencing decision on a third unrelated conviction.
Although facts might be established to demonstrate prejudice in such a case, we have yet to be shown by Burkett that this is such a case. It is for that reason that a hearing is required to determine whether the requisite prejudice does in fact exist.2 See United States v. James, 459 F.2d 443, 444-45 (5th Cir.), cert. denied, 409 U.S. 872, 93 S.Ct. 202, 34 L.Ed.2d 123 (1972) (individual who had already been sentenced on two unrelated charges denied relief after unreasonable sentencing delay on third charge because no prejudice found).
The majority also argues that the County has waived its right to contest the “finding” of prejudice because it did not attempt to appeal the district court’s order. Maj.Op., at 1223. But even if the County had been sufficiently prescient to construe the magistrate’s vague language as a finding of prejudice, the County cannot be deemed to have waived any objection to such a finding because the County would not have been permitted to seek review of an isolated “finding” of fact. Findings of fact are not appealable, orders are; and the County was not aggrieved by the order which dismissed Burkett’s petition for writ of habeas corpus. Thus, in my opinion, the majority has been obliged to torture both the language and the analysis of the district court’s order in an effort to find a basis for its conclusion that the May 30, 1985 order was one which could be appealed by Blair County.3 See Maj.Op., at 1223 n. 35.
*1230The majority has chosen to disregard the clear language of the district court’s order of May 30, 1985, which dismissed Burkett’s petition. Instead, it has chosen to construe the order as one granting “conditional approval” of the writ. Maj.Op., at 1213 n. 10 & 1223 n. 35. Such a reading is clearly untenable. The district court’s order: (1) denies the petition for habeas corpus relief; (2) directs that Blair County dispose of the post-trial motions and impose a sentence within sixty days; and (3) recommends that Burkett file a new petition for habeas relief if Blair County fails to act in accordance with the court’s directive.4
The majority has obviously ignored the clear language of the district court’s order, which denied Burkett’s petition and directed that a new one be filed if appropriate. Alternatively, if the majority has not ignored the district court’s order, then it must believe that a district court is somehow empowered to grant a future writ of habeas corpus — one that has not yet been filed!
Moreover, if “conditional approval” of the writ had been granted, then Burkett would have had no need to have appealed to this court, for his petition would have been successful, and he would have already obtained his relief. Because Blair County had not met the conditions of the writ’s denial within sixty days, the “conditional grant” of habeas corpus would have taken effect thereafter, and Burkett would have been freed by the district court’s order. This, of course, is not what happened because that, of course, was not what the district court ordered.5
The majority has concluded that Burkett has been prejudiced by the delay in sentencing despite the fact that Burkett’s incarceration has not been due to the state court’s failure to sentence him under Criminal Actions Nos. 140 and 141. Rather, Burkett’s incarceration is due to the unrelated convictions under Criminal Action No. 284 (under which Burkett is serving a sentence of 16 to 32 years) and Criminal Action No. 161 (under which Burkett is serving a sentence of 22 to 44 years).
Because I do not believe that delay alone is sufficient to establish a speedy trial violation in a post-conviction context, and because I cannot agree that the record discloses any prejudice or that the majority’s flawed law of the case doctrine can furnish prejudice where none exists, I cannot agree with the majority’s decision to order the district court to discharge Burkett’s convictions in Criminal Action Nos. 140 and 141.
II.
Because the majority insists upon holding that a finding of prejudice has already been made and thus constitutes the “law of the case,” it righteously declines to reach the legal issue of whether a finding of prejudice to the defendant is a prerequisite *1231to a post-verdict speedy trial violation. Maj.Op., at 1223, n. 36. I, however, am forced to confront this legal question because I cannot accept the majority’s “law of the case” theory. I conclude that a true, not a manufactured, finding of prejudice to the defendant is crucial to the legal conclusion that a speedy trial violation has resulted from a post-conviction sentencing delay.
Although I agree with the majority’s general conclusion that a defendant's constitutional right to a speedy trial must be upheld post-conviction as well as pre-trial, see, e.g. United States v. Campisi, 583 F.2d 692 (3d Cir.1978), I believe that significant differences are found between the two situations. As the Tenth Circuit recently pointed out in Perez v. Sullivan, 793 F.2d 249, 254 (10th Cir.), cert. denied, - U.S. -, 107 S.Ct. 413, 93 L.Ed.2d 364 (1986):
Obviously a delay in sentencing involves considerations different from those related to pre-trial delay. The alteration of the defendant’s status from accused and presumed innocent to guilty and awaiting sentence is a significant change which must be taken into account in the balancing process. Once guilt has been established in the first instance the balance between the interests of the individual and those of society shift proportionately-
As the court in Perez noted, the major considerations underlying the constitutional right to a speedy trial may be grouped into two categories: societal interests and interests of the individual defendants. For the accused individual, lengthy pre-trial delay impinges upon his rights because, even if he is not incarcerated prior to trial, the pre-trial delay forces him to “liv[e] under a cloud of anxiety, suspicion, and often hostility.” Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101 (1972). The disruption of an individual’s life while awaiting trial, especially when subjected to pre-trial incarceration, will usually be substantial. “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.” Id., at 532-33, 92 S.Ct. at 2193. Under our system of law, whereby an individual is presumed innocent until proven guilty, such considerations are and should be given substantial weight. Yet these considerations lose much of their force in the post-conviction context.
Post-conviction, there is less fear that an innocent individual is being improperly subjected to the deprivations inherent in incarceration. Although the individual is subjected to some uncertainty, the post-conviction uncertainty differs both in degree and in kind from the pre-trial uncertainty. As I have observed, pre-trial an individual’s anxiety revolves around a finding of innocence or guilt, freedom or deprivation of liberty. Post-conviction the individual knows that punishment is imminent; it is uncertain only as to degree.
Additionally, the societal interests in a speedy trial are less directly implicated in the post-conviction context. From society’s point of view, the right to a speedy trial serves to insure that a just result has been achieved. “The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system. In addition, persons released on bond for lengthy periods awaiting trial have an opportunity to commit other crimes____ Moreover, the longer an accused is free awaiting trial, the more tempting becomes the opportunity to jump bail and escape.” Barker, 407 U.S. at 519-20, 92 S.Ct. at 2186-87.
As is the case with interests of the individual defendants, the societal interests in a speedy trial are stronger in the pre-trial context than they are post-conviction. Post-conviction, society no longer needs to fear that delay will result in the criminal justice system’s being deprived of the opportunity to mete out an appropriate punishment. Likewise, in the post-conviction context, societal fears that an accused individual will be able to thwart justice by manipulating delay to his advantage, are largely eliminated.
*1232Additionally, the societal interest in limiting the possibility that a defense has been impaired by a lengthy delay, although applicable in both the pre-trial and post-conviction settings, is a much greater interest in a pre-trial context.6 With long delays pre-trial, witnesses may disappear, their memories may fade, and other evidence may be lost. Although post-conviction delays can result in similar problems if an appeal is filed and it is determined that an evidentiary hearing is required, the individual who has already received a presumptively fair trial has suffered far less hardship than the pre-trial individual whose rights have been prejudiced while having his guilt adjudicated in the first instance.
Therefore, whenever the four factors enumerated by the Supreme Court in Barker v. Wingo, a case which concerned pretrial speedy trial issues, have been applied to the post-conviction context, they have been applied with recognition given to this changed balance of interests. This change is manifested through a greatly increased emphasis on determining the prejudice, if any, suffered by the defendant. Indeed, prejudice is the polestar of any post-conviction speedy trial analysis.
While a showing of prejudice may not be absolutely necessary in order to find a Sixth Amendment violation, we have great reluctance to find a speedy trial deprivation where there is no prejudice. This is especially true in a post-conviction situation. In fact, it might be said that once a defendant has been convicted it would be the rarest of circumstances in which the right to a speedy trial could be infringed without a showing of prejudice. Moreover, the necessity of showing substantial prejudice would dominate the four-part balancing test. This is so because of the traditional interests the speedy trial guarantee is designed to protect: (1) prevention of oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired____
Most of those interests diminish or disappear altogether once there has been a conviction. Because the rights of society proportionately increase, the prejudice claimed by the defendant must be substantial and demonstrable.
Perez, 793 F.2d at 256 (citations omitted). See also United States v. Merrival, 600 F.2d 717, 720 (8th Cir.1979) (appellant must show prejudice before court can find his right to a speedy trial is violated by sentencing delay); United States v. Campbell, 531 F.2d 1333, 1335-36 (5th Cir.1976), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 121 (1977) (crucial question in determining whether sentencing delay resulted in violation of right to speedy trial is whether actual prejudice resulted); Juarez-Casares v. United States, 496 F.2d 190, 192 (5th Cir.1974) (violation of right to speedy trial has occurred when there has been unreasonable delay in sentencing and that delay has resulted in prejudice); Brady v. Superintendent, Anne Arundel County Detention Center, 443 F.2d 1307, 1310-11 (4th Cir.1971) (eight year sentencing delay had not resulted in sufficient prejudice to warrant release).
Therefore, as I understand the settled jurisprudence of the various circuits that have considered the special problem of applying the Barker v. Wingo speedy trial violation analysis in a post-conviction setting: (1) delay alone is insufficient to support a finding of constitutional violation; (2) the factor of prejudice becomes central to the inquiry; and (3) the burden to proof is on the defendant to establish prejudice.7
III.
Finally, even if I were to assume, as does the majority, that Burkett has met his bur*1233den of establishing prejudice, nevertheless I would not leap to the conclusion that dismissal of the charges is the proper remedy. The majority itself acknowledges that when the right to a speedy trial has been violated, only the prejudice of the violation must be rectified. Maj.Op., at 1220 (citing Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 486, 93 S.Ct. 1123, 1125, 35 L.Ed.2d 443 (1973)) & at 1221 (“the remedy must be discharge with prejudice to retrial if no lesser remedy can rectify the prejudice to the defendant ”) (emphasis added).
Despite this clear holding that lesser remedies may be appropriate, the majority has refused to consider whether the prejudice suffered by Burkett — a prejudice which the majority assumes but which has not been found — could be cured by a lesser remedy than dismissal of the charges. This is undoubtedly because, in the absence of any real finding of prejudice, it is impossible to know what specific needs require remediation.
In some factual situations, it might be appropriate for the district court to impose the statutory minimum punishment, rather than order discharge. See Brady, 443 F.2d at 1311 (court cannot assume that any prejudice resulted from sentencing delay when statutory minimum punishment was imposed). Although I acknowledge that the remediation decision is for the district court and not for us, I just cannot believe that an individual such as Burkett (who has been convicted of serious crimes, including terroristic threats, burglary, theft, corruption of minors, and receiving stolen property, and whose actual prejudice, as the record reveals, is limited to being incarcerated, not on these charges, but on related unassailable convictions, see note 2, supra) is entitied to discharge as a matter of law as a result of sentencing delay.8 Indeed, even if consideration were to be given to the “anxiety and uncertainty” discussed by the magistrate, those considerations, in the context of post-conviction delay, do not warrant discharge as a matter of law. See Perez, 793 F.2d at 257 (“the anxiety of an accused is not be equated for constitutional purposes with anxiety suffered by one who is convicted, in jail, unquestionably going to serve a sentence, and only waiting to learn how long that sentence will be”).
The majority appears to believe that, when faced with a substantial delay in an individual’s speedy trial rights, it is appropriate for this court to address unresolved factual issues concerning both prejudice and the proper remedy for any prejudice that is found. In my view, by so holding in this case, the majority has usurped the district court’s traditional role of fact-finder. See United States v. Campbell, 531 F.2d 1333, 1336 (5th Cir.1976), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 121 (1977) (where no explicit finding of prejudice has been made, remand to district court is appropriate). Similarly, once prejudice has been found, it is the district court which should decide what remedial action is required.
While the majority’s desire for an expeditious resolution of this matter is understandable in light of Blair County’s long inaction, the procedure invoked, whereby the majority has departed from its role as an appellate court and has sought to find facts as to prejudice and to impose remedies, is unprecedented. In Codispoti v. Howard, 589 F.2d 135 (3d Cir.1978), this court was confronted with an appeal from a prisoner who had been waiting twelve years for the state court to rule on his motion for a new trial. Upon determining *1234that Codispoti had effectively exhausted his available state remedies, with appropriate guidelines, we remanded the case to the district court for an evidentiary hearing on the issues of delay and remedy. The disposition ordered in Codispoti is an exemplar of the appropriate exercise of appellate review and disposition:
... the record before us shows no valid explanation as to why the state court has waited almost twelve years to dispose of a post-trial motion. Presumptively such a delay should impel us to consider the prisoner’s petition unless it can be shown that he has waived his appeal or some extraordinary occurrence has taken place.
We will therefore remand this case to the district court for an evidentiary hearing to determine why the petitioner’s new trial motion has not been disposed of. The burden of proof at this hearing shall rest with the respondent, James Howard. We recommend that the evidentiary hearing be conducted by the trial court and not by the magistrate.
It is further ordered that if the trial court concludes that the delay is inexcusable, it should then determine whether there were errors committed at Codispoti’s trial which were of a constitutional dimension. If there were constitutional violations, the court should further determine whether a new trial should be held or whether due to the passage of time the charges must be dismissed.
Id. at 142 (footnote omitted). Indeed, when, as in the instant case, the delay is in no way attributable to delay or inaction by the federal district court, a remand is the only permissible response.9
Consideration of the appropriate remedy becomes even more important when it is recognized that, due to a loss of judicial manpower, this court may soon be inundated with many similar cases from Blair County. See Schandelmeier v. Cunningham, 819 F.2d 52, 54-55 (3d Cir.1986). Indeed, there may be other counties in Pennsylvania where similar delays in sentencing have occurred. I do not think that this court should be the instrument for declaring wholesale releases of prisoners or discharges of convictions without the essential inquiry being made as to whether the affected prisoner has been prejudiced. Cf. Harris v. Pernsley, 820 F.2d 592 (3d Cir.1987) (Garth, J., dissenting).
I do not mean to imply that I believe that a prisoner loses his constitutional right to a speedy trial because the state courts are overburdened. I am not urging that Burkett be denied relief, providing it is appropriate. Rather, I maintain only that, for both prudential and jurisprudential reasons, an evidentiary hearing must be held to determine whether Burkett has actually suffered prejudice sufficient to warrant dismissal of his conviction in Criminal Actions Nos. 140 and 141.
IV.
Other than with respect to the majority’s disposition of Burkett’s conviction under Criminal Actions Nos. 140 and 141, I join the majority’s opinion.
As to Burkett's conviction under Nos. 140 and 141, the majority does not dispute the fact that a post-conviction speedy trial violation cannot result in the dismissal of a *1235valid state conviction unless the prisoner has carried his burden of demonstrating prejudice sufficient to warrant discharge of his conviction. Maj.Op., 1223 n. 36.
The record in this case does not demonstrate that Burkett has even alleged color-able prejudice, let alone met his burden of demonstrating it. Thus, I believe that it should be the district court, in the first instance, before whom Burkett must demonstrate prejudice sufficient to carry his burden of establishing a constitutional violation and sufficient to warrant a remedy of discharge.
I therefore dissent from so much of the majority’s decision which directs the district court to issue a writ which would discharge Burkett’s conviction under Criminal Actions Nos. 140 and 141.10
. The magistrate’s report reads, in part:
"As the Court recognized in Smith v. Hooey, 393 U.S. 374, 378 [89 S.Ct. 575, 577, 21 L.Ed.2d 607] (1969), where delay occurs, an individual may lose certain advantages such as receiving concurrent sentences and may even receive an enhanced sentence.
While the extent of prejudice cannot be measured with exactitude, it would appear reasonable to conclude that the delay by the Blair County courts has caused some loss to the petitioner____
Nevertheless, in view of the fact that the petitioner could recieve [sic] a sixty-one to a one hundred and twenty-two year sentence, it would appear that the degree of prejudice which might have occurred is not as critical as in some other Blair County cases where the possible period of incarceration is much shorter ...”
Supplemental Appendix at 10-12 (emphasis added). It is on the basis of these "findings” of the magistrate that the majority has chosen to mandate that the district court enter an order dismissing Burkett’s convictions as to Criminal Actions Nos. 140 and 141.
. Indeed, as I read Burkett’s brief, there is only one allegation of prejudice raised in respect to his sentencing delay in Criminal Actions Nos. 140 and 141. Burkett claims that he was prejudiced because he was forced to spend time incarcerated without an opportunity for appellate review (which cannot be had before the imposition of sentence). However, I note that Burkett would be spending this time in prison regardless of the disposition of his appeals in Criminal Actions Nos. 140 and 141, because he has been sentenced to 16 to 32 years under Criminal Action No. 284 and 22 to 44 years under Criminal Action No. 161.
. The majority also argues that the May 30, 1985 order was a final order. I do not dispute this fact, but it proves nothing. A certificate of probable cause was never issued from the district court’s May 30, 1985 order, which is the order adopting the magistrate’s finding that "it would appear reasonable to conclude that the delay ... has caused some [prejudice].” Therefore, Burkett could not appeal, see 28 U.S.C. § 2253 (no appeal allowed unless a certificate of probable cause issues); nor could Blair County appeal as it was not aggrieved, see note 5, infra.
It was obviously for this reason that Burkett, in accordance with the district court’s direction, filed a new petition. Thus, the majority’s “law of the case” theory simply cannot withstand analysis because even if Blair County believed that the magistrate’s report contained a finding of prejudice, and even if Blair County desired to *1230dispute such a finding, it could not do so because neither party could appeal the May 30, 1985 order which adopted the suspect finding. Having no opportunity to challenge the May 30, 1985 order, Blair County cannot have waived any objections it might have had to the findings that may appear therein.
Although the majority claims that I have found "that the procedure in the district court in May 1985 was so defective that we cannot rely on its findings," maj. op., at 1226 n. 43, the majority misunderstands my position. I do not claim that the procedure in the district court was defective. I argue only that there was no finding of prejudice made.
. The May 30, 1985 order reads in pertinent part:
"IT IS ORDERED that the petition of Wayne Burkett for a writ of habeas corpus is dismissed. and that a certificate of probable cause is denied, unless the Court of Common Pleas of Blair County fails to dispose of the post-trial motions and impose any appropriate sentence within sixty (60) days.
IT IS FURTHERED ORDERED that in the event that the Court fails to act in accordance with this directive that the petitioner file a new petition, that jurisdiction on the merits be assumed by this Court and that an appropriate merits determination be made.”
Appendix at 154.
. I am also confident that, if the County had attempted to appeal the district court’s order under this improbable theory of "conditional grant” of relief, this court would have been compelled to hold that no appellate jurisdiction obtained because the County as appellant was in no way aggrieved by the order entered. Perez v. Ledesma, 401 U.S. 82, 87 n. 3, 91 S.Ct. 674, 678 n. 3, 27 L.Ed.2d 701 (1971) (a prevailing party may not appeal a decision in its favor).
. In United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), the Supreme Court noted that the Due Process Clause better protects against the prejudice caused by the mere passage of time than does the Speedy Trial Clause. Id. at 7-8, 102 S.Ct. at 1502. "The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.” Id. at 8, 102 S.Ct. at 1502.
. On burden of proof, see, e.g., Juarez-Casares v. United States, 496 F.2d 190, 192 (5th Cir.1974).
. In Criminal Action No. 140, Burkett was convicted of burglary, theft, receiving stolen property, terroristic threats, and corruption of minors. He was acquitted of indecent assault and indecent exposure. The jury was hung on the charges of rape and recklessly endangering.
In Criminal Action No. 141, Burkett was convicted of burglary, theft, receiving stolen property, and terroristic threats. He was acquitted of indecent assault, indecent exposure, and involuntary deviate sexual intercourse. The jury was hung on the charges of rape, recklessly endangering, and unlawful restraint.
In Criminal Action No. 161, Burkett was convicted of rape, aggravated assault, terroristic threats, indecent assault, indecent exposure, unlawful restraint, and recklessly endangering.
In Criminal Action No. 284, Burkett was convicted of burglary, attempted rape, recklessly endangering, terroristic threats, simple assault, and harassment.
. In support of its determination to discharge Burkett’s conviction without an evidentiary hearing as to whether Burkett suffered prejudice, the majority relies on a statement made at oral argument by counsel representing Blair County, to the effect that the court "might appropriately [decide] to discharge and dismiss, after five and a half years." Maj.Op., at 1226 n. 41.
I suggest that the majority’s reliance is misplaced. We have not always greeted concessions as being dispositive. Beyond that however, I do not believe that this concession can be given credit for two reasons. First, there is no authority that exists which would discharge a prisoner in a post-conviction speedy trial context without a strong showing of prejudice by the prisoner. It is evident that the Assistant District Attorney representing Blair County at no time addressed the issue of prejudice.
Second, I do not think that we can abdicate to counsel our judicial function of deciding and implementing the law. As I have pointed out, delay alone is not sufficient in a post-conviction setting to constitute a constitutional violation. See discussion in text, supra.
Prejudice must be shown, and the mere fact that counsel, in the throes of an oral argument, does not recognize the prevailing jurisprudence, does not mean that we too can ignore it.
. I have not addressed the due process discussion that the majority opinion contains. I am somewhat puzzled by the majority’s due process discussion, maj.op., at 1220-1222 & 1224-1226, inasmuch as the majority has held that, because a Sixth Amendment speedy trial violation has occurred, Burkett’s conviction must be discharged. It would therefore appear superfluous to discuss due process doctrine, where the only result of such an analysis would be the imposition of a lesser remedy than the discharge already ordered. See Maj.Op., at 1222 (normal remedy for a due process violation is not discharge).
However, if the majority had remanded to the district court, as I have urged it to do, then of course it would have been appropriate for the district court to consider both the Sixth Amendment speedy trial and the Fifth Amendment due process claims.