dissenting.
Because the balancing of the four factors under Barker v. Wingo4 weighs against the State, I respectfully dissent.
The first two factors, the length of the delay and the reason for it, both weigh against the State. The 52-month delay in this case is greater than delays that we have characterized as “egregious” and “deplorable.”5 The reason for the delay lies wholly with the State and is largely unexplained. The transcript from the motion to dismiss shows that the State announced on February 7, 1997 that it was ready to try the case and the case was set for jury selection to begin February 18,1997. Less than two weeks later, however, on the morning of February 18, the State sought a continuance because two employees of the State’s medical examiners office were out of town attending a conference. In objecting to the continuance, Brannen noted that there was no dispute that the victim died of a gunshot wound and questioned the necessity of a continuance. The State has provided no evidence justifying its inconsistent responses to the call for trial on February 7 and February 18, or the necessity of these two witnesses. Even assuming mere negligence on the part of the State, the reason for the delay is still weighted heavily against the State because of the length of the delay. As the United States Supreme Court has stated, “the weight we assign to official negligence compounds over time . . . [t]hus, our toleration of such negligence varies inversely with its protractedness.”6
The third factor, the defendant’s assertion of the right, must weigh against Brannen because she did not file a speedy trial demand. She did however announce ready for trial when the case was called on February 18, 1997. She vigorously objected to the continuation of her trial and offered to concede the facts to be testified to by the State’s witnesses who chose to be absent.7 Additionally, none of the delay may be attributed to her.8 Under these circumstances, this factor should be weighted against the defendant, but not heavily.9 _
The fourth factor, the prejudice to the defendant’s ability to prepare her case, is the most serious factor. However, the majority evis*460cerates this component. To establish prejudice, the defendant must substantiate her claim that the testimony that would have been given by the absent witness is helpful.10 The majority destroys this requirement by concluding that the affidavit, which substantiates the existence of prejudice, in fact mitigates the prejudice. Thus, according to the majority, the very proof required obviates the prejudice sought to be proved.
Additionally, the majority suggests that the State is prejudiced by not being able to put forth its alternate theory that the victim was threatening suicide rather than Brannen’s life. However, the majority fails to recognize that the State, under the necessity exception, may present evidence of its investigators, who spoke to the deceased witness, that the victim was threatening suicide, not murder. The State’s argument also ignores the fact that a live witness, in this case a state investigator, will likely carry more evidentiary weight than will an affidavit that is written in the defendant’s lawyer’s handwriting, is notarized by that lawyer, and does not explain that the affiant was a friend of the victim’s and thus, does not dispel any concern about the affiant’s bias.
Finally, in considering the prejudice factor, the majority inappropriately relies on the supposed motive of Brannen in not filing a demand for speedy trial. The majority supports its conclusion that Brannen intentionally delayed with a quotation from Barker. However, the Supreme Court, in noting that “delay is not an uncommon defense tactic,” was not endorsing the use of this assumption in weighing the factors, but was explaining the amorphous quality of the constitutional right to a speedy trial and how it differs from other constitutional rights.11 In fact, the Court specifically rejected a “demand-waiver” rule that relied upon the assumption that delay usually works to the benefit of the defendant.12 In this case, the trial court made no factual findings regarding the State’s or Brannen’s motives. If this Court were to speculate on motivation, it would be equally valid to assume the State chose not to proceed with a weak case.13
Accordingly, the State’s “concession” to allow the admission of *461the affidavit does little, if anything, to ameliorate the prejudice suffered by the defendant and this factor must be weighted heavily against the State. Under these circumstances, where the prejudice is great, the 52-month delay is egregious, and the reason for the delay is largely unexplained, but clearly attributable solely to the State, I conclude that Brannen’s right to a speedy trial under the United States Constitution has been violated.
Decided October 5, 2001 Reconsideration denied November 5, 2001. J Alvin Leaphart, for appellant. Stephen D. Kelley, District Attorney, John B. Johnson III, Assistant District Attorney, Thurbert E. Baker, Attorney General, for appellee.I am authorized to state that Presiding Justice Sears and Justice Hunstein join in this dissent.
407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972).
See Nelloms v. State, 274 Ga. 179 (549 SE2d 381) (2001); Perry v. Mitchell, 253 Ga. 593 (322 SE2d 273) (1984).
Doggett v. United States, 505 U. S. 647, 657 (112 SC 2686, 120 LE2d 520) (1992).
Compare Barker, 407 U. S. at 535-536 (defendant failed to object to motions for continuance).
Compare Jones v. State, 273 Ga. 231 (539 SE2d 154) (2000) (much of the delay was attributable to defendant).
Cf. Barker, 407 U. S. at 529 (trial court may attach different weights to reason for failure to assert speedy trial right).
Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure § 18.2 (e) (2d ed. 1999); see, e.g., Jackson v. State, 272 Ga. 782, 783 (534 SE2d 796) (2000) (defendant must offer specific evidence of prejudice); Johnson v. State, 268 Ga. 416, 418 (490 SE2d 91) (1997) (noting failure to present evidence that possible exculpatory witnesses were not called because of delay).
Barker, 407 U. S. at 521.
Id. at 525-526 (also noting that “it is not necessarily true that delay benefits the defendant”).
Cf. Doggett, 505 U. S. at 657 (State’s “persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice”).