specially concurring.
On July 28, 1957, in a meadow beside the Thames, west of London, between Staines and Windsor, the American Bar Association dedicated a memorial to the Magna Carta. The Magna Carta was exacted from King John at the old council ground called Runnymede in June of 1215 by means which would have been called extortionate if done by lesser men for lesser gain. Its fortieth article provided: “To no one will we sell, to no one will we deny or delay right or justice.”
More than 560 years after the Magna Carta was written, a virtually uneducated Virginia planter with little legal training sat in his room in Raleigh Tav*99ern and wrote the first draft of what was to become the Virginia Declaration of Rights. The eighth article of George Mason's draft provided: “That in all capital or criminal prosecutions a man hath a right to ... a speedy trial by an impartial jury of his vicinage...
Thus, in Mason’s parlance the Magna Carta’s pledge not to delay justice was affirmatively stated as its correlative, the right to a speedy trial.
Poulos and Coleman, Speedy Trial, Slow Implementation: The ABA Standards in Search of a Statehouse, 28 Hastings L.J. 357, 357-58 (1976) (footnotes omitted).
The preeminence of the speedy trial right in the basic history of our society was most expressively related by federal court Judge Thomsen in United States v. Provoo, 17 F.R.D. 183, 196 (D.Md.), aff’d 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955):
The right to a speedy trial is of long standing and has been jealously guarded over the centuries. Magna Carta states: "To no one will we sell, to no one deny or delay, right or justice.” This provision was implemented by special writs of jail delivery, and later by commissions of general jail delivery, under which special judges cleared the jails twice a year. In 1679 Parliament passed the Habeas Corpus Act, 31 Car II, ch. 2, which required that prisoners indicted for treason or felony be tried at the next sessions or released on bail, “unless it appear to the Judges and Justices upon Oath made, that the Witnesses for the King could not be produced the same Term, Sessions, or General Gaol Delivery; (2) and if any Person or Persons committed as aforesaid, upon his Prayer or Petition in open Court the first Week of the Term or first Day of the Sessions * * *, to be brought to his Trial, shall not be indicted and tried the second Term, Sessions * * * or General Gaol-delivery, after his Commitment, or upon his trial shall be acquitted, he shall be discharged from his imprisonment.” That Act, which Blackstone called “the Bulwark of the British Constitution”, was still cherished by the British people at the time our Constitution was adopted, and by American patriots and lawyers, nurtured on Blackstone. Some thought the right of speedy trial and similar rights were so clearly a part of our “liberty” that no Bill of Rights was necessary. But the American people wanted to be sure, and gave the right of speedy trial first place in the Sixth Amendment * * *. [Footnotes omitted.]
Rights of Americans to a speedy trial were confirmed to be a singular essence of our heritage from this constitutional history. The United States Constitution spells out this right through the Sixth Amendment as does the Wyoming Constitution by inclusion in Wyo. Const, art. 1, § 10.
Many, many years more recent than 1215 at Runnymede, in continued concern about another of our foundational constitutional rights, Judge Learned Hand warned:
If the prosecution of crime is to be conducted with so little regard for that protection which centuries of English law have given to the individual, we are indeed at the dawn of a new era; and much that we have deemed vital to our liberties, is a delusion.
United States v. Di Re, 159 F.2d 818, 820 (2d Cir.), cert. granted 331 U.S. 800, 67 S.Ct. 1348, 91 L.Ed. 1824 (1947), judgment aff’d 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948).
If there is a thesis in the hysterical anguish pervading discussion by the separate dissents in this case, it can only be historically contrasted to my recognition of why the United States Congress’ dissatisfaction with the Barker rule, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), lead to the enactment of the Speedy Trial Act of 1974, as with passage of defining state statutes or adoption of court rules by the highest tribunals of individual states. Wyoming was not without similar concern as our state justice delivery system searched for justification and compliance with the constitutional criteria of speedy trial. In recognition that the confines of Barker were not necessarily sufficient without more protection, the Wyoming Judicial Conference answered judicially per*100ceived necessity and responsibility by adopting what is now Rule 204, Uniform Rules for the District Courts of the State of Wyoming.
Practical as well as academic criticism of Barker was, from the date of its publication, immediate and continuing. Amsterdam, Speedy Criminal Trial: Rights and Remedies, 27 Stan.L.Rev. 525 (1975); Erickson, The Right to a Speedy Trial: Standards for Its Implementation, 10 Hous.L. Rev. 237 (1973); Uviller, Barker v. Wingo: Speedy Trial Gets a Fast Shuffle, 72 Colum.L.Rev. 1376 (1972); Note, Constitutional Law — Standards for the Right to Speedy Trial, 51 N.C.L.Rev. 310 (1972); Recent Development, Constitutional Law —Sixth Amendment — Right to a Speedy Trial—A Balancing Test, 58 Cornell L.Rev. 399 (1973).1
Responsive to the obvious deficiencies in the ad hoc application demonstrated by Barker, which served primarily to avoid constitutional protection and absolve prose-cutorial delay in the conviction process, the United States Congress enacted the Speedy Trial Act of 1974, 18 U.S.C. §§ 3161-3174 (1982 ed. & Supp. IV 1986).2
The failure of previous judicial attempts to ameliorate the problem drew congressional attention to the need for a speedy trial act. Many states had already adopted their own versions of such an act. Congress focused particularly on the barriers to winning a dismissal and on the lack of interest in accelerating the trial process on the part of judges, prosecutors, and defense attorneys, many of whom had come to rely on delay in order to deal with heavy caseloads. The rising crime rate in the 1960’s, and the concomitant increase in the backlog in the federal courts, heightened the legislature’s interest in solving the speedy trial problem. This concern over the failure of previous judicial attempts to cure the increasingly lengthy delays in federal criminal trials culminated in the Speedy Trial Act of 1974.
Note, Determination of Dismissal Sanctions Under the Speedy Trial Act of 197Jj, LVI Fordham L. Rev. 509, 514-15 (1987) (footnotes omitted). Many states3 either *101enacted ameliorative statutes or adopted rules to meet practical obligations and assure workable remedies for speedy trials. The American Bar Association, in recognition of the insufficiency of Barker, provided scholastic and moralistic leadership by proposals for judicially adopted rules and legislative enacted statutes to establish defined time limitations. Among the examples of states responding were South Dakota, New Jersey, and North Carolina. State v. Reekes, 59 N.C.App. 672, 297 S.E.2d 763, review denied 307 N.C. 472, 298 S.E.2d 693 (1982). Cf. State v. Pippin, 72 N.C.App. 387, 324 S.E.2d 900, 908, review denied 313 N.C. 609, 330 S.E.2d 615 (1985). Included in decision was the determination that the protection of the Speedy Trial Acts or court rules created or confirmed new rights that were to be supplementary to the Barker enunciated federal constitutional right to a speedy trial and that a showing of prejudice was not always necessary before the rights for constitutional compliance could mature to justify relief. State v. Williams, 85 Wash.2d 29, 530 P.2d 225 (1975).
In introduction, it is noted that Wyoming, in early territorial legislation, anticipated what is today the modern trend by about one hundred years.4 How far we are called by some to regress from that heritage today. Comment, The Speedy Trial Guarantee: Criteria and Confusion in Interpreting Its Violation, 22 De Paul L.Rev. 839 (1973); Comment, Constitutional Right to a Speedy Trial: The Element of Prejudice and the Burden of Proof, 44 Temp.L.Q. 310 (1971); Note, Speedy Trials: Recent Developments Concerning a Vital Right, 4 Fordham Urb.L.J. 351 (1976); Note, Speedy Trial: A Constitutional Right in Search of Definition, 61 Geo.L.J. 657 (1973); Note, Speedy Trial Schemes and Criminal Justice Delay, 57 Cornell L.Rev. 794 (1972); Note, The Lagging Right to a Speedy Trial, 51 Va.L.Rev. 1587 (1965); Note, The Right to a Speedy Criminal Trial, 57 Colum.L.Rev. 846 (1957); Recent Development, Constitutional Law—Criminal Procedure — Right to a Speedy Trial — Where There Has Been a Substantial Delay and Claimant Raises a Prima Facie Showing of Resultant Harm, Burden of Proving Absence of Prejudice Held to be on Commonwealth, 17 VilLL. Rev. 365 (1971).5 See also Annotation, Continuances at Instance of State Public Defender or Appointed Counsel Over Defendant’s Objections as Excuse for Denial of Speedy Trial, 16 A.L.R.4th 1283 (1982) and Annotation, Accused’s Right to Speedy Trial Under Federal Constitution—Supreme Court Cases, 21 L.Ed.2d 905 (1969). Cf. Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987), where the Texas speedy trial act was declared unconstitutional under the state separation of powers concept. Assurance of a speedy trial remained a prosecu-torial and judicial responsibility. Branscum v. State, 750 S.W.2d 892 (Tex.App.1988). See likewise State v. Kolb, 755 S.W. 2d 472 (Tenn.Cr.App.1988).
Realistic impairment of defense is a cau-sity of extended delay with which the presumption of prejudice is logically related. State v. Langone, 127 N.H. 49, 498 A.2d 731 (1985). But likewise, a singular public interest is involved. State v. Striker, 87 Wash.2d 870, 557 P.2d 847, 851 (1976) states:
A speedy trial in criminal cases is not only a personal right protected by the federal and state constitutions (Const, art. 1, § 22), it is also an objective in *102which the public has an important interest. Some of the considerations which affect the interests of society generally are mentioned in a Note, Speedy Trials, Recent Developments Concerning a Vital Right, 4 Ford.Urb.L.J. 351, 353 (1976). The author states:
“A defendant in a criminal case can achieve definite advantages through delay. Once trial starts, stale cases are more easily challenged by defense attorneys on cross examination. Juries are often disenchanted with offenses that have occurred in the remote past. If prosecution witnesses become unavailable over long periods of time or prosecutorial ardor should wane, the guilty benefit at society’s expense.
Aside from affecting the probabilities of obtaining a conviction, the speedy trial right has significant impacts upon the quality of judicial action and the possibilities of future criminal conduct. The tendency to postpone trials adds to court congestion and the backlog of cases. To dispose of such backlog, plea bargaining is frequently utilized. In the interest of expediting matters accused persons receive lighter sentences than those they actually may have deserved. A second impact of delay is to weaken the deterrent effect that the criminal justice system should have on would-be criminals.
Finally, the speedy trial right is intricately related to the needs of a well ordered society in several other respects. Guilty persons released on bail for too long tend to commit other crimes or flee the jurisdiction of the courts altogether. Defendants who are not bailed must spend “dead” time in local jails exposed to conditions destructive of human character. For those who are eventually found innocent, their potential to be contributing members of society through any kind of employment is lost during pre-trial incarceration. On the other hand, the possibility of rehabilitating those who are eventually found guilty is diminished since correction procedures cannot be started until after trial. These nonproductive conditions are achieved at a great financial expense to society.”
If a scholar from outer space or afar, as unlearned in the warp and woof of the American justice delivery system and constitutional law decisional processes, was asked to critique the meaning and interpretation of the speedy trial litigation, the person would likely opine that it often is a process of saying what clearly is not, must be. The substantive thrust of these hundreds or thousands of cases invokes balancing of constitutional protection against structural bending and explicating constitutional protection. How little is the most we will require in constitutional compliance and how much is the least we will accept in denial becomes the legalistic dilemma for applied constitutional protection in providing speedy trials within our society.
This case and Phillips v. State, 774 P.2d 118 (Wyo.1989) pose that rational and moralistic test for this court without regard for the histrionics inculcated in dissents. Our constitutional oath as Wyoming jurists is not to guaranty the success of every prosecution or assure the approval of every conviction. Quite to the contrary, it is stated for us to support, obey and defend the constitution of the United States and of this state. Wyo. Const, art. 6, § 20. Among those rights for which we are charged to defend in supervisory responsibility for the operation of the justice delivery system is the guaranty of a speedy trial for those criminally charged. In Glasgow v. State, 469 P.2d 682, 686 n. 6 (Alaska 1970), in abandoning a blind adherence only to the federal approach, that court commented:
This interpretation unreasonably restricts the power of the members of this court to fulfill their obligation to uphold the constitution of this state. As such, it must be discarded.
See Comment, Right to Speedy Trial: Maintaining a Proper Balance Between the Interests of Society and the Rights of the Accused, 4 UCLA-Alaska L.Rev. 242 (1974).
*103It is time to reassess the state constitution without diminution from the morass of Barker related pre-speedy trial act federal law. In that direction, the least, as provided by the result-oriented decisions of another tribunal, should not confine the most that we are called to expect from this state’s constitution. When the Wyoming system of justice is not constitutionally called to provide what is promised by rules of court and neither the constitution nor rule is accomplished, something is wrong in attitude of constitutional responsibility for this appellate court and for the trial judges.
Perhaps, philosophically, this court should step back and learn something from history. Evisceration of constitutional rights is a quantum of gradual erosion. The guaranty of speedy criminal trials was a very meaningful concern in the foundation of this nation and remained a principal interest when the Wyoming Constitution was written during that hot and uncomfortable summer of 1889. Clearly, the criteria for justice through a speedy trial right was not an aimless admonition to society; it was a defined and specific prerequisite and obligation. Its institutionalization at Runnymede nearly 600 years ago as a standard for justice provides scant authority for the vituperation with which its authenticity is attacked by some members of this court in these cases today.
Fourteen years before statehood, as included in Wyo.Comp.Laws ch. 14 at 158 (1876), the substance of speedy trials was established for the new frontier territory:
SEC. 150. If any person indicted for any offense and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after such indictment found, he shall be entitled to be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.
SEC. 151. If any person indicted for any offense, who has given bail for his appearance, shall not be brought to trial before the end of the third term of the court in which the cause is pending, held after such indictment is found, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happens on his application, or be occasioned by the want of time to try such cause at such third term.
SEC. 152. If, when application is made for the discharge of a defendant under either of the last two sections, the court shall be satisfied there is material evidence on the part of the Territory, which cannot then be had, that reasonable exertions have been made to procure the same, and that there is just ground to believe that such evidence can be had at the succeeding term, the cause may be continued and the prisoner remanded or admitted to bail, as the case may require.
For further discussion of this provision, see: Casper, City of, v. Wagner, 74 Wyo. 115, 284 P.2d 409 (1955); State v. Levand, 37 Wyo. 372, 262 P. 24 (1927); State v. Keefe, 17 Wyo. 227, 98 P. 122 (1908); and Note, The Obligation of Securing a Speedy Trial, 11 Wyo.L.J. 44 (1956).
This constitutional protection and system prescription was first applied dispositively in Keefe, 17 Wyo. at 245, 98 P. 122. Chief Justice Potter, writing for the court, recognized that “[t]he Legislature of this state has determined for us, not unreasonably it seems, what, in certain cases at least, is to be regarded as a speedy trial within the meaning of the constitutional requirement.”. Id. at 245, 98 P. 122.
That court recognized:
That an accused should be granted a trial without unnecessary or unreasonable delay is not a new idea in criminal jurisprudence. In theory, at least, the right may be said to have been recognized at common law. Under a commission to the judges of general goal delivery they were empowered to try and deliver every prisoner, whereby the jails were generally cleared at least twice in each year. * * * And by the habeas corpus act of 31 Car. II c. 2 (1680), it was provided, among other things, “that every person committed for treason or felony shall, if he requires it at the first week of the next term, or the first day of *104the next session of oyer and terminer, be indicted in that term or session, or else admitted to bail, unless the King’s witnesses cannot be produced at that time; and if acquitted, or if not indicted and tried in the second term, or session, he shall be discharged from his imprisonment for such imputed offense.” * * *
The term “speedy trial” as it occurs in the constitution has been judicially interpreted as meaning generally a trial as soon after indictment as the prosecution can with reasonable diligence prepare for, regard being had to the terms of court. * * * A trial “conducted according to fixed rules, regulations and proceedings of law, free from vexatious, capricious and oppressive delays.” (6 Ency.L., 2nd Ed., 993.) “A trial regulated and conducted by fixed rules of law, and any delay created by the operation of those rules does not work prejudice to any constitutional right of the defendant.” (Church on Hab.Corp., sec. 254; Sample v. State, 138 Ala. 259 [36 So. 367 (1903)]).
Id. at 244, 98 P. 122 (emphasis in original). This court further espoused:
[T]he questions here reserved are clearly constitutional, for they involve the constitutional right of an accused in a criminal prosecution to a speedy trial, which right is claimed to have been violated in this case. The statute supplements the constitutional provision and secures or provides a method for securing the right thereby declared. It is to be regarded as enacted for the purpose of rendering the constitutional guaranty effective, and as a legislative declaration of what is and what is not, under the circumstances named, a reasonable and proper delay in bringing an accused to trial in respect of his constitutional right aforesaid. The authorities uniformly hold that such statutes are enacted for the purpose of enforcing the constitutional right, and that they constitute a legislative construction or definition of the constitutional provision — a provision incorporated in most of the state constitutions as well as in the constitution of the United States.
Id. at 243, 98 P. 122.
In 1969, as amended in 1971, this court adopted the present rules of criminal procedure. Included was W.R.Cr.P. 52, which provides:
Rules governing practice in district courts.
The Wyoming Judicial Conference may from time to time make and amend rules governing practice in the district courts not inconsistent with the Wyoming Rules of Criminal Procedure or applicable statutes. Copies of rules and amendments so made shall, upon their promulgation, be furnished to the Supreme Court.
In W.R.Cr.P. 56, “Laws superseded,” it was specifically stated that the derivation from territorial days of the speedy trial statutes, then most recently found in Revised Statutes of 1957, §§ 7-234 and 7-235, were “superseded.” Surprisingly, W.S. 7-236 (1957), as the third territorial statute, was not included in the supersession section when the criminal rules were adopted. These rules of criminal procedure, in themselves, provided no substitute for the previous statutory limitation. Having at least intended to supersede the historical statutes existent before statehood which provide the substance for constitutional guaranty of speedy trials, no matter what antipathy the constitutional right may have been engendered in rule composition, it cannot rationally be construed that this court intended just to leave the bare constitutional right hanging out without protection or ancillary support. Consequently, in converse attribution, without regard for any inquiry of the appropriateness of constitutional delegation of the primary responsibility of this court for the judicial system and operation of the justice delivery system pursuant to Wyo. Const, art. 5, § 2, the adoption by the Wyoming Judicial Conference of the uniform rules pursuant to the enabling rule of this court, has specific and definable meaning. Consequently, I ascribe to Rule 204 in real substance; not just bland, non-binding philosophic hope. Even if Wyo.Sess.Laws ch. 14 (1876) is *105repealed by present rule (which is questioned if no alternative is provided), its actual replacement, Rule 204, cannot be denied substance and meaning until this court provides a further superseding rule within the Wyoming Rules of Criminal Procedure.
Wyoming, except for Rhode Island6 which adopted and then rescinded a court rule, is the only state which dissected the rule by aberration through a course of decisions after adoption of a state rule or statutes. In denying the desired effect for enforced speedy trials, Wyoming found justification in the excusatory expletives derived from Barker. Sodergren v. State, 715 P.2d 170 (Wyo.1986); Binger v. State, 712 P.2d 349 (Wyo.1986); Cook v. State, 631 P.2d 5 (Wyo.1981); Robinson v. State, 627 P.2d 168 (Wyo.1981). The initiative process in the adoption of a Wyoming rule, present Rule 204 can be discerned from the publicized hand wringing of this court in Cherniwchan v. State, 594 P.2d 464, 469 (Wyo.1979):
Because of the mercurial characteristics attendant upon the proof of prejudice, and because speedy trial is a fundamental right, Justice Brennan, in Dickey v. Florida, supra [398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970)], was forced to conclude:
"... When the Sixth Amendment right to speedy trial is at stake, it may be equally realistic and necessary to assume the prejudice once the accused shows that he was denied a rapid prosecution.”
But, how long must prosecution be delayed before courts are warranted in assuming prejudice? There are as many answers as there are courts that have attempted to answer this question.
We speak at length to these issues out of shock and concern, and in the hope that the Bar of this state will know that we recoil in disbelief from a set of facts which reveals that 107 days after arrest have been permitted to pass before the officials responsible have seen fit to bring the accused before a magistrate as required by law — thus delaying their trial accordingly. The question is not whether these defendants have been wronged, but only, are their wrongs prejudicial in a constitutional sense?
Rule 204, formerly numbered Rule 22, was adopted by express rule authority given by this court to the Wyoming Judicial Conference after considerable analysis and effort by the involved district judges.7
*106This evaluation was even more deathly in constitutional conception and justice system development since it considered Rule 204, as adopted on September 14, 1979, not applicable to Estrada v. State, 611 P.2d 850 (Wyo.1980) as published May 28, 1980. Consequently, this court, at that time by intimation is debited with a supersession of what was not even considered.
We presently demean our courts and responsibility to justice if this court does not either abolish Rule 204 so that citizens are no longer able to rely on it, or, conversely, follow it, which is clearly not unachievable. See People v. Beyah, 67 Ill.2d 423, 10 Ill.Dec. 568, 367 N.E.2d 1334 (1977); State v. Brown, 61 Md.App. 411, 486 A.2d 813, cert. granted 303 Md. 115, 492 A.2d 616, rev’d 307 Md. 651, 516 A.2d 965 (1986); Vickery v. State, 535 So.2d 1371 (Miss.1988); Bailey v. State, 463 So.2d 1059 (Miss.1985); State v. Hoffman, 409 N.W.2d 373 (S.D.1987); and Rudstein, Speedy Trial in Illinois: The Statutory Right, 25 De Paul L. Rev. 317 (1976).
In Glasgow, 469 P.2d at 688 n. 9, the Alaska Supreme Court recognized:
Virtually all of the leading authorities who have studied the matter, however, agree that the right to speedy trial should be fixed in terms of days or months running from a specified event, excluding certain periods of necessary delay or delays at the instance of the defendant, which should also be identified precisely. See Standards Relating to Speedy Trial, § 2.1, Approved Draft, A.B.A. Project on Minimum Standards for Criminal Justice (1968).
See State v. Cleary, 3 Conn.App. 349, 488 A.2d 831 (1985), where five continuances were enough and that court did not need to consider constitutional issues. Furthermore, the integrity of the system demands that the rules are strictly enforced. Striker, 557 P.2d 847. See also State v. Mack, 89 Wash.2d 788, 576 P.2d 44 (1978). The Minnesota Court of Appeals acknowledged that Barker established only a minimum standard as had the Minnesota Supreme Court in establishing a supervisory rule:
“Nothing we have said should be interpreted as disapproving a presumptive rule adopted by a court in the exercise of its supervisory powers which establishes a fixed time period within which cases must normally be brought.”
State v. Stitzel, 351 N.W.2d 409, 410 (Minn.App.1984) (quoting from Barker, 407 U.S. at 530 n. 29, 92 S.Ct. at 2192 n. 29). Cf. State v. Bean, 236 Kan. 389, 691 P.2d 30 (1984).
Peering beyond the flower and fervor of the writings of all justices in this case, the essential message that this author seeks to have this court and our citizens acknowledge as this state’s obligation is that timely disposition, as demanded by our constitution, does mean something. I grow weary of rules that are to be applied in society only to others but never to the enforcers. Any application of situational ethics and denigrated constitutional concept is unacceptable. Consequently, I write to concur most strongly with the thoughtful and persuasive majority opinion. Words of anguish and attack for the system’s failure of performance cannot absolve a lack of compliance with our own rules, written and required in constitutional responsibility.
A speedy trial means what it says, a speedy trial. The Wyoming district judges, through the Wyoming Judicial Conference, understood what it was. Answering that responsibility, the constitutional interest was to be supported and nurtured through the adoption of the uniform rules. Justice William H. Erickson of the Colorado Su*107preme Court, as a scholar and activist within the American Bar Association and as a proponent for effectuation of rule rights to speedy trial, recognized a decade and a half ago that:
The sixth amendment guarantee of a speedy trial has been long recognized as one of the key constitutional provisions in our criminal procedure.
******
The United States Supreme Court in Barker propounded an ad hoc balancing approach to determine whether a defendant has been denied his sixth amendment right to a speedy trial. This approach creates problems of implementation. If the boundaries of the right are to be developed case by case, a protracted period of problem solving will result. State legislatures should consider solving many of these problems at once by enacting statutory standards. Although the ABA standards will not answer all the questions that will arise, their adoption by statute or court rule is a desirable solution.
Erickson, supra, 10 Hous.L.Rev. at 237-50.
It was in answer to this philosophic responsibility that Rule 204 was developed by the Wyoming judiciary. Unfortunately, once adopted, its parentage and respectability have been regularly challenged by this court without acceptance of a replaceable standard of judicial responsibility. It is easy to see why the legislature invades these perceived vacuums of ignored responsibility by the judiciary for the actual performance of the justice delivery system. State v. Geraldo, 13 Ohio App.3d 27, 468 N.E.2d 328 (1983). That rational relationship of territorial statutes, Wyo.Comp. Laws ch. 14 at 158 (1876), to the present court rule cannot logically or ethically be disregarded if the constitutional prerequisite to conviction remains to be a speedy trial.
What does this mean to Harvey in his criminal proceedings?8 On January 9, 1986, a criminal complaint was issued and the warrant executed by arrest. On January 29, 1986, he was bound over to district court following county court preliminary hearing and an information was subsequently filed on February 5, 1986 in the district court, with arraignment accomplished on that same date.
Without benefit of explanation or justification, Harvey’s case, as consolidated with the case of Phillips and the principal actor in the offenses, David L. Swasso, was first set for trial on January 6, 1987. Even at the time of this first setting, the Rule 204 time limitation for trial from date of information had expired. The limitation should have expired in early June, or half a year before the case was even first scheduled for trial. A speedy trial motion was filed when the January 1987 trial date did not stand and, by undisclosed assignment, the trial was further delayed to July 21, 1987. Consequently, the time from filing the information to the date of trial exceeded the speedy trial rule by 292 days.
We are called upon to look at this case on its facts in application of our constitutional responsibility. Factually, delay, as definable in this record, cannot be charged to Harvey from prosecutorial request for extension of time. Absolutely nothing is presented in this case in delay justification if the “flag all litigants seek to capture is * * * the reason for delay.” United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 656, 88 L.Ed.2d 640, 654, reh’g denied 475 U.S. 1061, 106 S.Ct. 1289, 89 L.Ed.2d 596 (1986). See also Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed. 2d 183 (1973); Hayes v. State, 487 So.2d *108987 (Ala.Cr.App.1986); State v. Larson, 369 N.W.2d 323 (Minn.App.1985); Vickery, 535 So.2d 1371; Perry v. State, 419 So.2d 194 (Miss.1982); State v. Forsyth, 761 P.2d 363, 369 (Mont.1988); State v. Britton, 213 Mont. 155, 689 P.2d 1256 (1984); Geraldo, 468 N.E.2d 328; State v. Wheaton, 528 A.2d 1109 (R.I.1987); and Williams, 530 P.2d 225. The reason for delay, if given, should be appropriately examined on appeal and each period assigned to the responsibility of the state unless the defendant caused the delay. People v. Ross, 145 Mich.App. 483, 378 N.W.2d 517 (1985), appeal denied 1/28/86; State v. Brooke, 381 N.W.2d 885 (Minn.App.1986).
Following arraignment on February 5, 1986, Harvey promptly filed an amended motion for discovery and inspection on February 18, 1986 along with a motion to dismiss on the basis that sufficient evidence had not been presented at preliminary hearing through the then departing counsel. The next entry found demonstrating any action in the case was a letter from the trial court dated December 5, 1986, or ten months thereafter, which first set the cases for trial on January 6, 1987 and, secondly, consolidated the three cases. No evidence of a motion by the prosecution for consolidation is of record. Additional counsel entered an appearance for Harvey on December 15,1986, and prior counsel withdrew on January 22, 1987. Most curiously then, on February 4,1987, the trial court entered an order for presentence investigation which included a statement that has no other support in record or documentation: “THIS MATTER having come before the Court on the 4th day of February, 1987, and the State and Counsel for the Defendant having both requested a presentence investigation.” The speedy trial motion was made April 27, 1987.9
The State filed a motion for discovery on July 2, 1987, received an apparent ex parte order for discovery on July 2, 1987, and then first filed some compliance with the nearly year-and-a-half-old discovery request of Harvey by a witness and exhibit list filed July 2, 1987. This is post-indictment delay that does not require the showing of prejudice — it is presumed. People v. Archerd, 3 Cal.3d 615, 91 Cal.Rptr. 397, 477 P.2d 421 (1970). For Harvey, justification for the delay is simply non-existent in this record. People v. Hill, 37 Cal.3d 491, 209 Cal.Rptr. 323, 691 P.2d 989 (1984); People v. Vila, 162 Cal.App.3d 76, 208 Cal.Rptr. 364 (1984). When the delay by passage of time is presumptively prejudicial, adequate justification by the state is required. State v. Haskins, 220 Mont. 199, 714 P.2d 119 (1986); Britton, 689 P.2d 1256.
Simplistically, what is presented is a criminal arrest on January 5, 1986 and a convened trial July 21, 1987, without any explanation in the record for the delay or any events justifying extension or chargea-bility of time to Harvey’s activity. If we are going to disregard the constitutional *109mandate and the clear limitation of the rules adopted for implementation where not only no adequate but no justification at all is afforded, then no delay, whether five years or fifteen years, has any greater call for criticism. A record that is silent will not overcome the presumption against forfeiture by a defendant of a constitutionally guaranteed protection. Com. v. Moore, 20 Mass.App. 1, 477 N.E.2d 1033, review denied 395 Mass. 1103, 481 N.E.2d 197 (1985); People v. Harris, 61 N.Y.2d 9, 471 N.Y.S. 2d 61, 459 N.E.2d 170 (1983). If the dissents’ views are true, we simply write out of our constitution and criminal practice any rights to require a speedy trial in criminal proceedings. This is the “how much is only a little evil” syndrome. This case comes within the well-established principles of thoughtful persuasion that the delay is presumptively improper unless justified. Lacking a semblance of justification, the constitution cannot properly be ignored or the conviction permitted to stand.10
In first analysis, we should consider whether the time which exceeds the time limitation established by our court rule creates a violation requirement to demand justification. DeSpain v. State, 774 P.2d 77 (Wyo.1989); Serna v. Superior Court (People), 40 Cal.3d 239, 219 Cal.Rptr. 420, 707 P.2d 793 (1985), reh’g denied and opinion modified 12/19/85, cert. denied 475 U.S. 1096, 106 S.Ct. 1493, 89 L.Ed.2d 894 (1986). It is to be answered that first, in essence, we decide if there is a delay. Second, the delay can be presumptively prejudicial. Serna, 219 Cal.Rptr. 420, 707 P.2d 793; State v. Fairchild, 108 Idaho 225, 697 P.2d 1239 (1985).
In short the standards governing the statutory right to a speedy trial, which we have long observed, still apply, and the defendant is not obliged to show prejudice or affirmatively demand that his rights be observed. This is not to say, of course, that these factors are completely irrelevant. At times they must be considered, particularly where the defendant’s constitutional right is asserted. If for instance a short delay is involved * * * or the People can show good cause * * * the defendant might still be entitled to a dismissal if he can demonstrate actual prejudice or a consistent demand for a speedy trial. * * * But when the delay is unreasonably long and the People have not shown good cause, the defendant may rely on his statutory rights without proving more.
People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 86, 335 N.E.2d 303 (1975). In application of this principle, “[t]he speedy trial provision of the Idaho Constitution is further distinguished by its close nexus to other Idaho laws establishing specific time frames for criminal proceedings.” Fairchild, 697 P.2d at 1241. The Fairchild court held:
The proper appellate response to an infringement of the right to a speedy trial is to set aside the conviction. We do not take such action lightly but believe it to be our duty under the unique circumstances presented here. Accordingly, the judgment of conviction in this case is reversed.
Id. at 1244.
Absent any evidence from which waiver or forfeiture11 can be adduced, in concur*110rence, I follow the principle enunciated by the California Supreme Court in People v. Wilson, 60 Cal.2d 139, 32 Cal.Rptr. 44, 48, 383 P.2d 452, 456 (1963) (quoting from People v. Godlewski, 22 Cal.2d 677, 682(3), 140 P.2d 381 (1943)), that statutes (or rules) “are ‘supplementary to and a construction of the Constitution.” Consequently, Rule 204, as long as it remains unrepealed, requires a constitutional function in its application. In other words, ad hoc violation of an implementing rule to assure constitutional protection results in a violation of due process, equal protection and Sixth Amendment constitutional guarantees.
Criminal defendants are constitutionally guaranteed the right to a speedy public trial. * * * The sixth amendment guarantee is a fundamental right, made binding on the states by the due process clause of the fourteenth amendment. * * * The Idaho Constitution also affords the party accused in a criminal prosecution the right to a speedy trial. * * * However, the right to a speedy trial under the Idaho Constitution is not identical to the right guaranteed by the United States Constitution. * * * While inquiries into speedy trial claims under the federal constitution involve ad hoc determinations under guidelines established by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Idaho constitutional provision has been supplemented by legislation.
State v. Hobson, 99 Idaho 200, 579 P.2d 697, 698 (1978) (emphasis in original). See also State v. Russell, 108 Idaho 58, 696 P.2d 909 (1985), where delay was factually justified.
To accomplish a desired conviction in contravention of constitutional protections, we cannot ethically engage in an “exercise in strained logic and judicial illusion.” United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 1510, 71 L.Ed.2d 696 (1982) (Marshall, J., dissenting). I will not partake in “allowing doctrinaire concepts * * * to submerge the practical demands of the constitutional right to a speedy trial.” Smith v. Hooey, 393 U.S. 374, 381, 89 S.Ct. 575, 579, 21 L.Ed.2d 607 (1969).
The constitutional mandate that “a defendant is entitled to a speedy trial,” Beavers v. Haubert, 198 U.S. 77, 86, 25 S.Ct. 573, 575, 49 L.Ed. 950 (1905), only acquires real meaning in application to the justice delivery system. Otherwise, the constitutional provision and perhaps the entire constitution mean nothing if it is to be so casually disregarded.
Suffice it to remember that this constitutional guarantee has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system: “[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself.”
Hooey, 393 U.S. at 377-78, 89 S.Ct. at 577 (quoting United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966)) (footnote omitted).
In Rutherford v. State, 486 P.2d 946 (Alaska 1971) and Glasgow, 469 P.2d 682, the Alaska Supreme Court, addressing both a constitutional mandate and a rule requirement, recognized the morality and the integrity constituents of the court system in operation. Comment, supra, 4 UCLA-Alaska L.Rev. 242. Likewise, we are faced here in basic fundamentals with the morality and integrity of the Wyoming judiciary as charged with the responsibility of enforcing the constitutions of the United States and of this state. Hitler’s ascension to the totalitarian control of the Third Reich came not solely from successful elections of the political party, but also from result oriented abandonment of the operational substance of the constitution of the prior short-lived Weimar Republic of Germany. It is to be recognized that the hands of totalitarianism are only separated from any democratic system by a thin veneer provided by the armor of constitutional responsibility and responsiveness.
In admonition and application, this court should in all basic constitutional interests, including attainment of speedy trials, fol*111low the philosophic responsibility enunciated by Chief Justice Warren in Klopfer v. State of N.C., 386 U.S. 213, 223-26, 87 S.Ct. 988, 993-95, 18 L.Ed.2d 1 (1967):
We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215), wherein it was written, “We will sell to no man, we will not deny or defer to any man either justice or right”; but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon (1166). By the late thirteenth century, justices, armed with commissions of gaol delivery and/or oyer and terminer were visiting the countryside three times a year. These justices, Sir Edward Coke wrote in Part II of his Institutes, “have not suffered the prisoner to be long detained, but at their next coming have given the prisoner full and speedy justice, ... without detaining him long in prison.” To Coke, prolonged detention without trial would have been contrary to the law and custom of England; but he also believed that the delay in trial, by itself, would be an improper denial of justice. In his explication of Chapter 29 of the Magna Carta, he wrote that the words “We will sell to no man, we will not deny or defer to any man either justice or right” had the following effect:
“And therefore, every subject of this realme, for injury done to him in bon-is, terns, vel persona, by any other subject, be he ecclesiastical!, or tempo-rall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.”
Coke’s Institutes were read in the American Colonies by virtually every student of the law. Indeed, Thomas Jefferson wrote that at the time he studied law (1762-1767), “Coke Lyttleton was the universal elementary book of law students.” And to John Rutledge of South Carolina, the Institutes seemed “to be almost the foundation of our law.” To Coke, in turn, Magna Carta was one of the fundamental bases of English liberty. Thus, it is not surprising that when George Mason drafted the first of the colonial bills of rights, he set forth a principle of Magna Carta, using phraseology similar to that of Coke’s explication: “[I]n all capital or criminal prosecutions,” the Virginia Declaration of Rights of 1776 provided, “a man hath a right... to a speedy trial....” That this right was considered fundamental at this early period in our history is evidenced by its guarantee in the constitutions of several of the States of the new nation, as well as by its prominent position in the Sixth Amendment. Today, each of the 50 States guarantees the right to a speedy trial to its citizens.
The history of the right to a speedy trial and its reception in this country clearly establish that it is one of the most basic rights preserved by our Constitution. [Emphasis in original and footnotes omitted.]
My premise in special concurrence is to assure that Wyoming is not now left out somehow in accomplishment of this historical responsibility. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970).
I decline to strain — unconstitutionally— to affirm.
.It is interesting to compare the comprehensive analysis of Circuit Court Judge John C. Godbold in Godbold, Speedy Trial—Major Surgery for a National III, 24 Ala.L.Rev. 265 (1972), which was at the printers when the Barker case was determined. In his conclusion, Judge Godbold stated:
Without attempting to cover all aspects of the impact of the ABA Standards and the Second Circuit Rules upon the problems of speedy trial, it should be noted that they strike directly at some of the more difficult areas. Of great importance is the removal of the focus of responsibility from the defendant to the court and public prosecutor. In this vein, the necessity for demand by the accused is eliminated, except in the procedural sense of moving for discharge before trial or plea of guilty. Also, the ABA Standards provide for and the Second Circuit Rules both provide for and fix, definite time periods. The necessity for the existence and proof of individual prejudice is thus eliminated.
Id. at 293 (footnote omitted).
Obviously, his concerns were not answered by the ad hoc subjective balancing thesis then provided by the Barker decision where the length of delay is actually only considered as a triggering mechanism before consideration of any substantive contemplation of the constitutional interest. Project, Sixteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1985-1986, 75 Geo. L.J. 713, 953 (1987).
. See United States v. Taylor, — U.S. -, 108 S.Ct. 2413, 101 L.Ed.2d 297 (1988); United States v. Pollock, 726 F.2d 1456 (9th Cir.1984); Annotation, Excludable Periods of Delay Under Speedy Trial Act (18 USCS §§ 3161-3174), 46 A.L.R.Fed. 358 (1980); and Note, Speedy Trial Act of 1974 — Dismissal Sanction for Noncompliance with the Act: Defining the Range of District Courts’ Discretion to Dismiss Cases with Prejudice, 79 J.Crim.L. & Criminology 997 (1988).
. Note, supra, LVI Fordham L.Rev. at 514 n. 40 states:
See, e.g., Cal. Penal Code § 1382 (West 1982) (enacted 1872); Ill.Ann.Stat.Ch. 38, ¶ 103-5 (Smith-Hurd 1980) (enacted 1963); Nev.Rev.Stat. § 178.556 (1987) (enacted 1967); see also Constitutional Right, supra note 21, at 697-98. Congress sometimes referred to the state speedy trial acts during legislative debates. See S.Rep. No. 1021, 93d Cong., 2d Sess. 14-17, 21-22 (1974); 119 Cong. Rec. 3264 (1973) (remarks of Sen. Ervin).
Similarly, see Iowa — Dunahoo and Sullins, Speedy Justice, 22 Drake L.Rev. 266, 291 (1973), which states:
The first and best speedy trial protection afforded a defendant is pursuant to a fixed-time dismissal statute with criteria of dismis*101sal being demand, lapse of the fixed-time, motion to dismiss, and no showing of good cause for delay by the state.
See also South Dakota—State v. Hoffman, 409 N.W.2d 373 (S.D.1987); Note, State v. Hoffman: The 180-Day Rule and a Lack of Balance, 33 S.D.L.Rev. 165 (1988) and New Jersey—Wice, The Speedy-Trial Dilemma: A Handbook on Reform, 23 Crim.L.Bull. 323 (1987).
. See review of the prior Wyoming statute, State v. Keefe, 17 Wyo. 227, 98 P. 122 (1908) and Note, The Obligation of Securing a Speedy Trial, 11 Wyo.L.J. 44 (1956).
. The author of Note, supra, 61 Geo.LJ. at 657, by introduction, quotes from U.S. Const, amend. VI and C. Dickens, Oliver Twist 333 (Chas. Scribner & Sons, New York 1901):
“In all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial — ” " ‘If the law supposes that,’ said Mr. Bumble, ‘the law is an ass.’ ” [Footnotes omitted.]
. Topical Survey, Annual Survey of Rhode Island Law for the 1987-1988 Term, 22 Suffolk U.L.Rev. 431, 447 (1988). See State v. Wheaton, 528 A.2d 1109 (R.I.1987).
. The Wyoming Judicial Conference was initially created by order of the Wyoming Supreme Court to consist of members of the district bench and the justices of the Supreme Court. Under its aegis, twenty-six uniform rules have been adopted. The present status of the conference is undefined by current action of this court. Contrary to any other observed jurisdiction, these rules are not separately approved or adopted by action of the Wyoming Supreme Court and their efficacy is consequently not clarified, except authority for adoption is clearly granted by W.R.Cr.P. 52. Generally, this court has given effect to all uniform rules except the Rule 204 speedy trial rule. This curious treatment may be explained where the court, after analysis of prejudice and the balancing test as previously pursued in Estrada v. State, 611 P.2d 850 (Wyo.1980), considered what was Rule 22, which now is Rule 204.
However, our .inquiry does not yet end. Before the Estrada opinion was handed down on May 28, 1980, the Wyoming Judicial Conference adopted Rule 22 on September 14, 1979. Rule 22 was not an issue in that case and was not considered by this court in the decision. Authority for promulgation of district court rules is found in Rule 52, W.R.Cr.P., which provides that:
"The Wyoming Judicial Conference may from time to time make and amend rules governing practice in the district courts not inconsistent with the Wyoming Rules of Criminal Procedure or applicable statutes. Copies of rules and amendments so made shall, upon their promulgation, be furnished to the Supreme Court.”
There has been no showing in this case that proper procedures for the promulgation of Rule 22 were not followed. This court does not approve or disapprove district court rules upon receipt of a copy as provided by Rule 52, supra. The adoption of Rule 22 by the Judicial Conference was obviously to set guidelines to encourage and motivate prompt disposition of criminal cases and to avoid a constitutional violation with respect to speedy trial requirements. It should be noted particularly that no sanction of dismissal is provid*106ed by the rule. To so provide would have caused it to be inconsistent with Rule 45(b), W.R.Cr.P. by defining "unnecessary delay,” which this court has decided must be determined on a case-to-case basis following standards and the tests set out in Estrada. Its adoption was accordingly admirable but the fixing of an absolute deadline by Rule 22(d), Uniform Rules for the District Courts of the State of Wyoming was in conflict with, superseded and modified by Estrada.
Robinson, 627 P.2d at 171-72 (footnote omitted).
If I were to agree that this was a valid conclusion, which I do not, it would follow that the territorial statute must remain in effect. We cannot amend the constitution by rule recision of a legislative enactment without at least providing an effective and working replacement.
. Speedy trial was not the only issue presented on appeal. Matters of considerable substance are stated as:
Whether or not the trial court erred by failure to grant Appellant’s Motion in Limine regarding evidence of uncharged wrongs or acts. Whether or not the trial court erred by imposing an illegal sentence and by an abuse of discretion when sentencing Appellant.
Whether or not the trial court erred by instructing the jury on flight as evidence of guilt when there was no evidence of flight against Appellant.
Additionally, of particular concern to me is the non-responsive challenge to the trial court for prejudice. See footnote 9, infra and Smallwood v. State, 771 P.2d 798 (Wyo.1989) (Urbigkit, J., dissenting).
. In July 1987, predating the scheduled trial which "however scheduled" occurred on July 21, 1987, Harvey, through retained counsel, filed a motion to disqualify the trial judge on the basis of prejudice as supported by affidavit and an attached letter. This letter was written by the trial court to counsel which, in addition to comments about other cases, stated with relevance to this case:
I have been requested by the prosecution to set the above cases [including 6. State v. Jeddy Lee Harvey and 8. State v. Everett William Phillips] and on checking each file find that in Item 7 above [David L. Swasso], Swazo [sic] confessed and incriminated both Harvey and Phillips in Items 6 and 8. There were also other witnesses plus the victim. * * *
In view of the strength of all of these cases, I hate wasting time and money trying them and I would appreciate it if you could make some kind of satisfactory plea bargain. Some might be entitled to probation and others could get prison time. I want the prosecution and the defense to confer in each case, and let me know by January 19 what you want to do.
The letter showed a copy to the prior counsel for Harvey, Patrick S. Werner, who has since been disbarred by this court, but no copy to present counsel who entered an appearance in the case December 15, 1986. Counsel followed the disqualification motion with a letter to the trial court requesting a decision:
Please advise me of your ruling at your earliest convenience. This is not intended to delay the trial of the matter and, if the Court’s ruling is in favor of recusal, I would request the trial not be delayed any further.
His denial is recorded by handwritten notation on a copy of the letter as filed July 6, 1987.
. A California case, in reversing conviction because of a denial of speedy trial where delay was not explained in either the brief or at oral argument, summarized:
We long ago learned, from our Anglo-Saxon jurisprudential history, that the crown does not win or lose a case, it merely sees that justice is done.
The primary function of the office of prosecutor is to diligently and vigilantly pursue those who are believed to have violated the criminal codes of the state.
In that regard, the guiding light of due process illuminates the field of combat and defines the depth of the duty to be obeyed.
While hard blows may be struck against an opponent, the strike may not be withheld without warrant until such time as occasions an adversarial disability.
The combination of circumstances chronicled here violated fundamental fairness, the touchstone of due process.
People v. Hartman, 170 Cal.App.3d 572, 216 Cal.Rptr. 641, 648-49 (1985), review denied 10/28/85.
. There is a difference. See Westen, Away From Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich.L.Rev. 1214 (1977).