dissenting.
Because Garcia deliberately fled the state, he is the principal cause of the police’s delay in locating him. Therefore, he was required to show that actual prejudice resulted from the delay, and he was unable to do so. I respectfully dissent.
The United States Supreme Court set out the four-factor test for evaluating a speedy trial claim in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). While the majority uses the correct test, it reaches the wrong result. The second Barker factor asks “whether the government or the defendant is more to blame for the delay.” Id. On these facts, Garcia was more to blame; he left the jurisdiction. Garcia knew he was suspected of shooting Dominguez at a Chinese restaurant in front of witnesses who could identify him. He knew police would be looking for him. Still, he fled to Chicago. No one alleges here that the police acted in bad faith. See Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) (government only has duty to make diligent, good faith effort). Even if the Kirkwood police were not “a model of prosecutorial initiative and concern,” when a defendant leaves the jurisdiction after committing a crime, he cannot later claim that his right to a speedy trial was violated. State v. Black, 587 S.W.2d 865, 877 (Mo.App.1979) (government’s delay is weighed against complete lack of actual prejudice to defendant resulting from it); Reynolds v. Leapley, 52 F.3d 762, 764 (8th Cir.1995) (no speedy trial violation occurred where “most of the nine year delay was caused by the fact that [the defendant] fled the jurisdiction following his offense”); United States v. Escamilla, 244 F.Supp.2d 760, 765-66 (S.D.Texas 2003) (no speedy trial violation occurred where, even though the government’s efforts to find defendant were negligent, defendant was still the principal cause of the delay).
There is no requirement that the government make “heroic efforts to apprehend a defendant who is purposely avoiding apprehension.” Rayborn v. Scully, 858 F.2d 84, 90 (2nd Cir.1988). The majority ignores the plain fact that police departments have limited resources. Worse, the majority creates further incentive for criminal defendants to conceal themselves from justice. United States v. Salzmann, 548 F.2d 395, 404 (2nd Cir. 1976) (Feinberg, J., concurring) (allowing criminal defendants who successfully escape detection to bring speedy trial claims sanctions game playing). It was Garcia, not the state, who was the principal cause of the delay.
Because the second Barker factor weighs against Garcia, he is not entitled to a presumption of prejudice when the Court considers the fourth factor. Wilson v. Mitchell, 250 F.3d 388 (6th Cir.2001) (defendant not entitled to presumption of *915prejudice because he was partially responsible for the delay); Robinson v. Whitley, 2 F.3d 562, 570 (5th Cir.1993) (Doggett presumption of prejudice not applicable to defendant who contributed two-thirds of total delay); Reynolds, 52 F.3d at 764; United States v. Bergfeld, 280 F.3d 486 (5th Cir.2002); United States v. Cardona, 302 F.3d 494 (5th Cir.2002).
The Sixth Amendment contemplates three harms arising from excessive trial delay: “oppressive pretrial incarceration,” “anxiety and concern of the accused,” and “the possibility that the defense will be impaired.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. Because Garcia was never incarcerated and because he claims he did not know about the charges against him, the “only harm to petitioner from the lapse of time was potential prejudice to his ability to defend his case.” Doggett v. United States, 505 U.S. 647, 658-59, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (O’Connor, J., dissenting). The majority concedes that speculative or possible prejudice is not enough. Majority opinion at 912 (quoting State v. Edwards, 750 S.W.2d 438, 442 (Mo. banc 1988); Doggett, 505 U.S. at 667, 112 S.Ct. 2686 (Thomas, J., dissenting) (government negligence and possible prejudice not enough for a speedy trial violation)).
Yet Garcia made no attempt to show actual prejudice, and for reason. He, like all criminal defendants, enjoys a presumption of innocence. According to the parties’ stipulation, four witnesses are now unavailable, two videotaped witness statements cannot be located, and the Chinese restaurant where Garcia shot Dominguez no longer exists.1 But it is the state that has to prove its case beyond a reasonable doubt. Absent a specific showing, it is difficult to see how the disappearance of the government’s key witnesses will prejudice Garcia. At minimum, “delay is a two-edged sword.” United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986) (the passage of time may make it difficult or impossible for the state to carry its burden); Barker, 407 U.S. at 521, 92 S.Ct. 2182 (unlike other constitutional rights, the deprivation of the right to a speedy trial may work to the accused’s advantage). Further, the seven-year delay — in itself — does not prove prejudice. The Eighth Circuit has found even a 19-year delay to not violate the Sixth Amendment. See United States v. Wangrow, 924 F.2d 1434 (8th Cir.1991). It is undisputed that Garcia did not demonstrate actual prejudice. The second and fourth Barker factors weigh in favor of the state.
Mandamus is an extraordinary remedy. Because Garcia has not shown that he has a “clear and unequivocal right” to relief, I would quash the writ. McKee v. Riley, 240 S.W.3d 720, 725 (Mo. banc 2007).
. However, much evidence does still exist— among it, the gun used in the shooting, original crime scene photos, and the victim's testimony.