dissenting.
I believe the majority wrongly places the blame for the delay in this case on the defendant, rather'than on the State, where it rightly belongs. Accordingly, I dissent.
Weis was arrested on February 2, 2006, and charged with murder and other crimes in connection with the death of Catherine King. Six-and-a-half months later, on August 25, the State filed a notice of intent to seek the death penalty. Defense counsel, Robert H. Citronberg and Thomas M. West, entered appearances on behalf of Weis on October 12, 2006.
On November 22, 2006, a second indictment was lodged against Weis. That was followed by a second notice of intent to seek the death penalty on December 11, 2006. Weis was arraigned on February 9, 2007, more than one year after his arrest.
*56In the meantime, defense counsel filed a number of motions for a continuance to obtain funds to investigate the case. The motions were prompted by the fact that the Public Defender Standards Council was not being adequately funded and was unable to pay for experts to assist Weis in his defense. The motions were denied. In September 2007, due to a lack of funds, the Standards Council stopped making payments to compensate defense lawyers.
Defense counsel filed an emergency motion to obtain funding, pointing out that they were not being paid and that they were still without funds to hire experts. On November 26, 2007, at a hearing on the motion, Mack Crawford, director of the Standards Council, testified that funds to pay defense counsel were depleted and he was unable to state when they would be available. In light of that testimony, the district attorney moved the court to replace defense counsel with attorneys from the local public defender’s office.4 The court granted the motion over Weis’ objection. Weis timely moved the trial court to reconsider the removal of his previous defense counsel; the public defenders simultaneously moved to withdraw as counsel. Both motions were denied.
On January 17, 2008, the public defenders again moved to withdraw as counsel, pointing out their “lack of time and expertise to conduct the extensive investigation that is necessary” in this death penalty case and the fact that they were unable to obtain funds for a mitigation specialist. Three weeks later, Weis brought a mandamus proceeding against the trial judge, seeking to have his original defense counsel, Citronberg and West, reinstated. Thereafter, on April 25, 2008, the parties stipulated that original defense counsel would be reinstated; and the Standards Council approved funding for the representation of Weis in the amount of $255,000. Those funds were never made available, however, and on December 31, 2008, Weis filed a second petition for mandamus. This time, Weis aimed his petition at Crawford to require him to sign a contract and provide the funds promised for the defense.
The trial court reinstated Weis’ original defense counsel on February 11, 2009, 15 months after they were dismissed by the trial court. However, they were still not compensated by the Standards Council, which refused even to agree to provide a sum certain for Weis’ defense.
Four months later, on June 1, 2009, the trial court ordered that an evidentiary hearing take place on July 8, and that trial would *57commence on August 3. Weis, who was still without paid counsel or funds to hire an investigator for his defense, moved to dismiss the indictment, alleging the trial court denied his right to counsel and a speedy trial. He followed with a motion for discharge and acquittal.
At the hearing on July 8, Crawford appeared and agreed to provide funding for defense counsel in the amount of $75,000. He also agreed to pay $40,000 for costs associated with investigating the case. These amounts were to be paid into the registry of the court. The trial court denied Weis’ motions to dismiss the indictment and for discharge and acquittal.
The Sixth Amendment to the Constitution of the United States, as well as the Constitution of this State, Art. I, Sec. I, Par. XI, guarantee that an accused shall be given a speedy trial. These rights accrue at the time of arrest, or the bringing of formal charges, whichever is earlier. Boseman v. State, 263 Ga. 730, 731 (438 SE2d 626) (1994).
In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), the Supreme Court of the United States identified four factors to be considered by a court in determining whether an accused’s constitutional right to a speedy trial had been violated. These factors are: (a) The length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. 407 U. S. at 530. The Supreme Court further stated that it regarded none of the factors as either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial but rather that the factors should be considered together in a balancing test of the conduct of the prosecution and the defendant.
Washington v. State, 243 Ga. 329, 330 (1) (253 SE2d 719) (1979). My examination of these factors leads me to conclude that the trial court abused its discretion in ruling that Weis’ right to a speedy trial was not violated. State v. Carr, 278 Ga. 124, 126 (598 SE2d 468) (2004).
a. Length of delay. The length of delay factor serves a dual function. First, a reviewing court must determine whether the delay was sufficiently long so as to be considered “presumptively prejudicial.” If so, the court puts the case through the Barker analysis and looks at the delay factor a second time to weigh the length of delay in conjunction with the other factors. “This latter enquiry is significant to the speedy trial analysis because . . . the presumption that pretrial delay has prejudiced the accused intensifies over time.” Doggett v. United States, 505 U. S. 647, 652 (112 SC 2686, 120 LE2d 520) (1992); Ruffin v. State, 284 Ga. 52, 57 (663 SE2d 189) (2008).
*58The delay in this case, spanning the time between Weis’ arrest and the filing of his motion to dismiss, exceeds three-and-a-half years and, as the majority concludes, is presumptively prejudicial. See Doggett, 505 U. S. at 652, n. 1 (delay is “presumptively prejudicial” as it approaches one year). Furthermore, even in a capital case such as this, a delay exceeding three-and-a-half years is too long. This is especially so where, as here, defendant has been incarcerated during the entire time. See Ruffin, supra. Accordingly, this factor should be weighed against the prosecution.
b. Reason for the delay. The record does not show that the prosecution intentionally delayed this case to gain a tactical advantage. Thus, this factor is not weighted heavily against the prosecution. Barker, 407 U. S. at 531. Regardless of its motive, however, it is clear to me that the State is to blame for the delay. The prosecution took an inordinate amount of time to decide whether to seek the death penalty. The Public Defender Standards Council, a state agency, failed to adequately fund the defense5 even though it was charged with the responsibility to provide effective legal representation to indigent defendants.6 The prosecution suggested replacing Weis’ original counsel with public defenders to remedy the state’s budgetary problems. This suggestion added to the delay because, unlike original counsel, the public defenders were unfamiliar with the case, did not have a working relationship with Weis, and lacked time and expertise to handle this death penalty case. See generally Grant v. State, 278 Ga. 817 (607 SE2d 586) (2005). Finally, when the Standards Council ultimately promised to provide funds to pay defense counsel and to hire an investigator, it did so on the eve of trial and at a steep discount, leaving Weis with little time and no real ability to mount a defense.
The prosecution asserts that it cannot be blamed for the Standards Council’s failure to provide funds. However, the Standards Council is a state actor, an arm of the government. Thus, any delay or prejudice attributed to the Council’s budgetary problems and its refusal to provide funds for the defense must be laid at the feet of the prosecution. See Ruffin, supra at 61 (relevant inquiry is not whether prosecutor or defendant is responsible for delay but whether government or defendant is responsible for delay).
Vermont v. Brillon, _ U. S. _ (129 SC 1283, 1292, 173 LE2d 231) (2009), cited by the majority, is not apposite for the simple reason that defense counsel were not responsible for the delay. *59Rather, contrary to the majority’s reasoning, this case does fall within the exception acknowledged in Brillon, i.e., a “breakdown in the public defender system,” which should be attributed to the State. See also Barker, supra at 538 (delay is not justified because funds are lacking and “each case must await its turn”) (White, J., concurring). That is because, were it not for the State’s failure to provide funds, the statewide public defender system would have worked to provide Weis with counsel and permit him to continue with counsel of his choice.
The majority posits that defendant himself is responsible for the delay because he refused the assistance of substitute counsel who were appointed to solve the State’s budget impasse. I cannot accept this position. First, the public defenders acknowledged that they were inadequately prepared to defend a capital case and that without additional funds for investigators and experts it would not be feasible to do so. For this reason, they themselves asked to be allowed to withdraw as counsel. Second, and more fundamentally, defendant was entitled to proceed to trial with his original counsel, “who had earned his trust, confidence, and allegiance [and] were thoroughly familiar with the defendant’s case.” Amadeo v. State, 259 Ga. 469, 470 (384 SE2d 181) (1989). Defendant should not have been forced to choose between original counsel and new, unfamiliar counsel in order to seek a speedy trial. The State’s budgetary problems did not justify the removal of defendant’s original counsel. See Morris v. Slappy, 461 U. S. 1, 23, n. 5 (103 SC 1610, 75 LE2d 610) (1983) (“[T]he considerations that may preclude recognition of an indigent defendant’s right to choose his own [court-appointed] counsel, such as the State’s interest in economy and efficiency. . . should not preclude recognition of an indigent defendant’s interest in continued representation by an appointed attorney with whom he has developed a relationship of trust and confidence.”) (Brennan, J., concurring in result). See also Lane v. State, 2010 Ala. Crim. App. LEXIS 2 (decided Feb. 5, 2010) (“ ‘once counsel is appointed to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused’ ”).
It is beyond question that the State is required to provide appointed counsel and expert assistance to indigent criminal defendants. Ake v. Oklahoma, 470 U. S. 68 (105 SC 1087, 84 LE2d 53) (1985); Gideon v. Wainwright, 372 U. S. 335 (83 SC 792, 9 LE2d 799) (1963). Thus, if the State wants to seek the death penalty against an indigent defendant, it must provide adequate funds for a full and *60vigorous defense. The State cannot shirk this responsibility because it is experiencing budgetary constraints. It still must fulfill its constitutional obligation to bring those accused of committing crimes to trial in a speedy manner. “[T]he short and perhaps the best answer to any objection based upon expense was given by the Supreme Court of Wisconsin in a case much like the present one: ‘We will not put a price tag upon constitutional rights.’ [Cit.]” Smith v. Hooey, 393 U. S. 374, 380, n. 11 (89 SC 575, 21 LE2d 607) (1969).
The bottom line here is that the State should not be allowed to fully arm its prosecutors while it hamstrings the defense and blames defendant for any resultant delay. This factor should be weighed against the prosecution because “the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Barker, supra at 531.
c. The assertion of the right to speedy trial. Weis did not assert his speedy trial right until the case was put on a trial calendar. Ordinarily, such a delay would lead this Court to weigh this factor against the defendant. In this case, however, Weis found himself on the horns of a dilemma. He made numerous requests to fund his defense, all to no avail.7 Until he was given funds to mount a defense, he could not prepare for trial. And if he could not prepare for trial, it would have been reckless to ask for a speedy trial. Under these circumstances, this factor should not be weighed against Weis. See State v. Redding, 274 Ga. 831 (561 SE2d 79) (2002) (defendant’s failure to request speedy trial until case appeared on the calendar was not weighed against him in light of the prosecution’s representation that case would be placed on dead docket).
d. The prejudice to the defendant. The right to a speedy trial is essential to protect three basic demands of the criminal justice system: to prevent undue and oppressive pretrial incarceration, to minimize excessive anxiety and concern, and to limit the possibilities that excessive delay will impair a defendant’s ability to prepare and defend the case. United States v. Ewell, 383 U. S. 116, 120 (86 SC 773, 15 LE2d 627) (1966). “Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, supra at 532. I believe the denial of a speedy trial in this case compromised Weis’ speedy trial protections in the last two ways.
Courts have recognized that anxiety and concern is present to some extent in every criminal case. See, e.g., Jackson v. State, 272 Ga. 782 (534 SE2d 796) (2000). Thus, anxiety and concern will not *61weigh in a defendant’s favor in the absence of unusual circumstances suggesting he suffered excessive anxiety and concern impacting upon his health or finances. See Boseman v. State, supra. Weis has made such a showing. The record demonstrates that he suffers from severe depression and anxiety and experiences visual and auditory hallucinations. Although he has been given medications8 for his mental illnesses, his condition worsened during his confinement and led to three suicide attempts. See in this connection United States v. Dreyer, 533 F2d 112, 115, 116 (3rd Cir. 1976).
As to the last type of prejudice, impairment of the ability to prepare a defense, Doggett makes clear that such prejudice will not be presumed if the delay is for a legitimate reason; that it will “present an overwhelming case for dismissal” if the delay is intentional; and that prejudice will be presumed where the delay is caused by government negligence amounting to an “egregious persistence in failing to prosecute.” Id. at 656, 657. As for the presumption of prejudice, Doggett concluded that “affirmative proof of particularized prejudice is not essential to every speedy trial claim” because “excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify.” Id. at 655.
Inasmuch as the three-and-a-half year delay in this case stems from the government’s failure to fund the defense, I would not require Weis to demonstrate particularized prejudice. Rather, I would presume that the delay compromises Weis’ ability to present an adequate defense. Id. I reach this conclusion, in part, knowing that in any case, and particularly in a death penalty case, defense counsel must investigate the facts and mitigating circumstances at the earliest opportunity, and that, here, defense counsel were stymied in their ability to carry out that task. At the same time, the prosecution, which was funded consistently, had every opportunity to complete its investigation in preparation for trial.
The majority concludes that the prejudice factor must be weighed against Weis because he cannot point to evidence that has gone missing or witnesses who have become unavailable. This argument cannot withstand scrutiny. As noted above, prejudice is to be presumed where it stems from the government’s failure to prosecute for reasons which are simply not legitimate. The failure to move this case forward is the direct result of the government’s unwillingness to meet its constitutional obligation to provide Weis with legal counsel and the funds necessary for a full investigation. *62This failure cannot be justified,9 and it casts doubt upon the fairness and reliability of a trial in ways that neither Weis, nor the prosecution, can be expected to identify. Id. Thus, it is not incumbent upon Weis to demonstrate actual prejudice. See Moore v. Arizona, 414 U. S. 25 (94 SC 188, 38 LE2d 183) (1973) (rejecting “notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial”). See also Barker, supra at 532 (“If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.”).
Weis has demonstrated prejudice insofar as his pretrial detention has impacted negatively on his mental health. Moreover, the presumption is that he has been prejudiced in his ability to prepare a defense. Accordingly, this last, and most serious factor, weighs against the prosecution. See State v. Carr, supra.
None of the four factors identified in Barker are
a necessary or sufficient condition to the 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. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.
Barker, supra at 533.
This fundamental constitutional right should be examined with the knowledge that where, as here, a defendant’s life is in jeopardy, the Court must be “particularly sensitive to insure that every safeguard is observed.” Gregg v. Georgia, 428 U. S. 153, 187 (96 SC 2909, 49 LE2d 859) (1976). With this in mind, I would balance the four factors set forth in Barker and conclude that Weis has been denied his constitutional right to a speedy trial.
I am authorized to state that Chief Justice Hunstein and Justice Benham join in this dissent.
*63Decided March 25, 2010 Reconsideration denied April 9, 2010. Robert H. Citronberg, Thomas M. West, Stephen B. Bright, for appellant. Scott L. Ballard, District Attorney, Robert W Smith, Jr., Assistant District Attorney, Thurbert E. Baker, Attorney General, Patricia B. Attaway Burton, Senior Assistant Attorney General, for appellee.The Standards Council would not have to provide legal fees for the public defender because these lawyers would receive their stipulated salaries in the course of their representation.
The Standards Council’s early promises to provide adequate funds for defense counsel and an investigator went unfulfilled. For most of the time, defense counsel were not paid at all.
OCGA § 17-12-1 et seq.
Ultimately, on the eve of trial, Weis was promised some funds, hut not before he filed a petition for mandamus against Crawford.
Weis has been given Seroquel, Thorazine, Haldol, Cogentin, Prozac and Klonopin.
This is not a case in which defense counsel are trying to exact exorbitant fees from the state coffers; on the contrary, counsel are simply seeking to fulfill their constitutional mandate to provide effective representation.