(dissenting) — I agree with the analysis of the Court of Appeals that preaccusatorial delay violated defendant Eskridge's due process rights and that his conviction must be reversed and the case dismissed. State v. Lidge, 49 Wn. App. 311, 317-21, 742 P.2d 741 (1987). Therefore, I dissent.
My review of the record convinces me that the Court of Appeals was correct when it stated:
We conclude that the trial court's findings do not support its conclusion that the delay was neither intentional nor negligent. First, Walton's testimony, which was based solely on her review of the file, did no more than establish that her office followed its usual procedure. The fact *853that the prosecuting attorney's office made a determination on the legal sufficiency of the case does not answer the question of whether that determination was made negligently. Put another way, the fact that the State acted procedurally properly begs the question of whether the resulting delay was justifiable. We know of no case, and none is cited, where conclusory testimony that a case was "not sufficient" was found, standing alone, to satisfy the burden placed on the State by Calderon. [State v. Calderon, 102 Wn.2d 348, 684 P.2d 1293 (1984).]
State v. Lidge, supra at 319.
The Court of Appeals points out quite correctly that in State v. Calderon, 102 Wn.2d 348, 684 P.2d 1293 (1984) "the State offered extensive evidence demonstrating that it was involved in an ongoing large-scale undercover drug buying operation that involved numerous additional arrests which had to be synchronized with the defendant's.” State v. Lidge, supra at 320.
In this case, the State "failed to offer any evidence of what information it lacked on May 13 or what additional information it later received which made the case 'sufficient.'" State v. Lidge, supra at 320. Identical charges to those filed against the adult codefendants ultimately were filed against defendant Eskridge.
I therefore agree with the Court of Appeals that the State failed to present any facts justifying the delay which caused defendant Eskridge to be subject to prosecution as an adult rather than a juvenile. I disagree with the majority's assertion that Eskridge should be responsible for establishing the cause for the delay. That burden properly rests with the State, which caused the delay, once the defendant establishes the delay prejudiced him. State v. Calderon, supra.
On these facts, the defendant has met his burden of showing prejudice by establishing that there was a prosecu-torial-caused delay in bringing the charges and that this delay prevented the juvenile court from exercising its jurisdiction over him. State v. Calderon, supra. The gravity of loss of juvenile jurisdiction in this case far outweighs the *854importance to the State of the delay. State v. Alvin, 109 Wn.2d 602, 746 P.2d 807 (1987).
The majority points out that an "investigative" delay does not become improper merely because further investigation proves fruitless. Footnote 3 (citing United States v. Lovasco, 431 U.S. 783, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977)). While this is true, such a procedure creates a potential for great abuse unless some reasonable explanation is required concerning the need for such investigation. The majority eliminates the necessity for the State to make any justification for its delay. This establishes bad precedent.
I agree with the majority that broad discretionary powers of determining when to file charges is an important tool for prosecution. In this case, however, without any explanation of the necessity for an "investigative" delay, the record establishes only that the State delayed solely to charge defendant Eskridge as an adult rather than as a juvenile. This constitutes a violation of Eskridge's due process rights.
I would affirm the Court of Appeals, reverse the conviction, and dismiss the case.
Utter and Dore, JJ., concur with Pearson, J.