concurring.
I join the majority opinion in full, because I agree that (1) the trial court needs to fully address whether any feasible alternatives are available to ensure Phan’s constitutionally effective representation, before concluding that the State’s public defender system has broken down with respect to this particular case, and (2) the trial court must then weigh those and other relevant facts using the four-factor balancing test for speedy trial claims set forth in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). Because this case will continue after remand, I write separately to note two important points.
First, with respect to the Barker v. Wingo analysis, it should be recognized that delayed assertion of the right to a speedy trial and lack of prejudice are the two factors that most often weigh heavily against defendants and which then support the overall conclusion that speedy trial rights have not been violated. See, e.g., Marshall v. State, 286 Ga. 446, 447 (689 SE2d 283) (2010); Williams v. State, 279 Ga. 106, 109-110 (610 SE2d 32) (2005). In this case, however, whatever the *701reasons for the delay in Phan’s assertion of his speedy trial rights, those rights have now been asserted clearly for more than a year, since April 30, 2009. In addition, more than six years have already passed since Phan’s arrest on March 16,2005, and “[although the passage of time is not alone sufficient to sustain a speedy trial claim, greater pretrial delays simultaneously increase the degree of prejudice presumed and decrease the expectation that the defendant can demonstrate tangible prejudice to his or her ability to present a defense.” Williams v. State, 277 Ga. 598, 601 (592 SE2d 848) (2004). This interlocutory appeal has taken nearly a year to resolve, and the trial court on remand should decide to which party that delay should be attributed. But in evaluating the presumptive prejudice that is caused simply by the passage of time, courts look to the total elapsed time since the defendant’s speedy trial rights attached, and that time is increasing with every passing day. In short, after this case is remanded, time will not be on the State’s side, and the trial court and the parties should be keenly aware that the difficult and close questions this case raises will need to be addressed with alacrity.
Second, it should also be recognized that the United States Supreme Court has held that “ ‘the only possible remedy’ ” for a constitutional speedy trial violation is dismissal of the indictment with prejudice. Strunk v. United States, 412 U. S. 434, 440 (93 SC 2260, 37 LE2d 56) (1973) (quoting Barker v. Wingo, 407 U. S. at 522). See Akhil Reed Amar, Sixth Amendment First Principles, 84 Geo. L.J. 641, 645 (1996) (recognizing this strict rule and describing it as “the mother of all upside-down exclusionary rules,” which “provides a windfall for the guilty while leaving the innocent defendant. .. uncompensated”). The trial court may take aggressive action to safeguard the public interest and preclude a speedy trial violation, see Weis v. State, 287 Ga. 46 (694 SE2d 350) (2010), and the district attorney has the authority to dismiss the death penalty notice, if that will make adequate funding available to the defense and allow for a speedy trial of this case. Once a constitutional speedy trial violation is found to exist, however, the remedy will be dismissal of the case.