Nelson v. State

915 S.E.2d 541, 321 Ga. 460

• Court: Supreme Court of Georgia
• Decided: May 6, 2025
• Docket: S25A0336
• Status: Published

Opinion

321 Ga. 460 FINAL COPY

S25A0336. NELSON v. THE STATE.

COLVIN, Justice.

Appellant Quillian Donta Nelson, who has been charged with

murder and related offenses in connection with the June 3, 2020

shooting death of Darwin Davis, appeals the denial of his motion to

dismiss his indictment based on a violation of his constitutional

right to a speedy trial. As explained below, we conclude that the trial

court’s ruling was based on several clearly erroneous findings of fact,

as well as misapplications of the law. Accordingly, we vacate the

trial court’s order and remand for further consideration of

Appellant’s motion to dismiss.

1. The record on appeal shows the following. Appellant was

arrested on June 5, 2020. On August 7, 2020, Appellant filed a pre-

indictment demand for a speedy trial, invoking his right to a speedy

trial under the United States Constitution. More than 14 months

after his arrest, on August 23, 2021, a Fulton County grand jury returned an indictment against Appellant, charging him with

murder and related offenses.

Appellant’s original defense attorney filed a motion for a

continuance on March 15, 2022, due to an unspecified “conflict that

w[ould] take precedence over” Appellant’s case, but the record does

not reflect whether the court ruled on the motion. On May 19, 2022,

defense counsel filed a notice that she would be on leave for personal

reasons for a total of 28 days between July 2022 and January 2023.

And on October 13, 2022, defense counsel filed a motion to withdraw,

which the court granted on January 3, 2023.

Substitute counsel for Appellant made an appearance in the

case on February 8, 2023. And the record reflects that, between

February 2023 and May 2024, Appellant’s new defense attorney

filed several notices regarding anticipated leaves of absence, which

reflected that she would be on leave for more than 80 days between

March 2023 and August 2024. Over that same period, the prosecutor

filed a notice that she intended to take leave for a total of nine days.

On July 10, 2023, Appellant filed a motion for permission to file

2 an out-of-time statutory demand for speedy trial under OCGA § 17-

7-171 (a). In the motion, Appellant also said that he was making a

demand for a speedy trial “[p]ursuant to the Georgia Constitution.”

The trial court held a hearing on the motion on August 31,

2023. During the hearing, the court noted that the case had

appeared on the court’s trial calendars for January and June 2023.1

The court asked defense counsel what happened when the case

appeared on the trial calendar, and defense counsel responded that

she “believe[d]” she had “announced ready” for trial, but that the

case “was just never reached.” At a later hearing, however, defense

counsel clarified that the defense had not announced ready for trial

on January 3, 2023, when the case first appeared on the trial

calendar, because that was the same day the court had granted

original counsel’s motion to withdraw. But defense counsel stated

1 The trial court was permitted to take judicial notice of its own trial

calendars, which are not contained in the record on appeal. See Brown v. C & S Nat. Bank, 245 Ga. 515, 518 (265 SE2d 791) (1980) (concluding that “the trial court was authorized to take judicial notice of the absence of the attorney’s name on the trial calendar” because “a court may take judicial notice of its own records in the immediate case or proceedings before it”). 3 that she had announced ready for trial when the case appeared on

the June 2023 and April 2024 trial calendars, and that the case

simply was not reached. The court noted that, if the case was not

reached, that meant other cases on the calendar were older or that

the court had determined, in its discretion, to prioritize other cases

over Appellant’s. On September 27, 2023, the trial court entered an

order denying the motion to file an out-of-time statutory demand for

a speedy trial.

On October 24, 2023, three years and four months after

Appellant’s arrest, Appellant moved to dismiss his indictment on

constitutional speedy-trial grounds, invoking his right to a speedy

trial under both the United States Constitution and the Georgia

Constitution. The court scheduled a virtual hearing on the motion

to dismiss for June 18, 2024, but Appellant requested that the court

reschedule the hearing to another date so the motion could be heard

in person.

On August 12, 2024, the court held a hearing on Appellant’s

motion to dismiss the indictment. Testifying at the hearing,

4 Appellant said that he had received inadequate medical care

throughout his four-year incarceration, that his requests for medical

attention had generally been ignored, and that the Sheriff’s

Department had not taken him to his medical appointments or given

him proper medication. In particular, he testified that he had

developed an infection due to a pre-arrest gunshot wound, and that,

about a month after his June 2020 arrest, the court had to order that

he receive medical treatment for the infection.2 Appellant further

testified that, in January 2023, prisoners attacked him while he was

sleeping and then stabbed him 36 times, after which he received

treatment at a hospital for a collapsed lung. According to Appellant,

a jail doctor later told him that he had Post-Traumatic Stress

Disorder (“PTSD”) as a result of the stabbing, but that he could not

be treated for PTSD inside the jail. When asked about his ability to

ask jail employees for help obtaining medical treatment, Appellant

responded only that the jail employees were “working with the

2 The record shows that, on July 10, 2020, the court ordered the Fulton

County Sheriff’s Department to ensure that Appellant received adequate and proper medical care. 5 inmates” to commit “crimes” and were “sending [inmates] into dorms

to rob other [inmates] . . . , to beat them up, [and] to stab them.” And

he complained about inadequate sleeping arrangements, showering

facilities, and sanitation. Describing his incarceration generally,

Appellant said that it had been mentally, physically, and

emotionally painful.

On September 11, 2024, four years and three months after

Appellant’s arrest, the trial court denied Appellant’s motion to

dismiss the indictment on constitutional speedy-trial grounds.

Appellant timely applied for a certificate of immediate review, which

the trial court granted. And we granted Appellant’s application for

interlocutory appeal.3

2. Appellant argues that the trial court abused its discretion in

denying his motion to dismiss his indictment on constitutional

speedy-trial grounds because the court’s ruling was based on errors

of both fact and law. We agree, as explained below.

3 After we granted the application, Appellant timely filed a notice of appeal. The case was docketed to this Court’s term beginning in December 2024 and submitted for a decision on the briefs. 6 “The Sixth Amendment of the United States Constitution

guarantees that, in all criminal prosecutions, the accused shall enjoy

the right to a speedy trial.” Rafi v. State, 289 Ga. 716, 716 (2) (715

SE2d 113) (2011) (citation and punctuation omitted). “This right is

enshrined in the Georgia Constitution and is co-extensive with the

federal guarantee made applicable to the states by virtue of the

Fourteenth Amendment of the United States Constitution.” Id.

(citation and punctuation omitted). Constitutional speedy-trial

claims are analyzed under the two-step Barker-Doggett framework.

See id. at 716-717 (2) (citing Barker v. Wingo, 407 U. S. 514 (92 SCt

2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S.

647 (112 SCt 2686, 120 LE2d 520) (1992)). At the first step, “the trial

court must determine whether the delay at issue was sufficiently

long to be considered presumptively prejudicial.” Palmer v. State,

318 Ga. 511, 516 (2) (899 SE2d 192) (2024). If so, the trial court

proceeds to the second step, which “requires the application of a

[four-factor,] context-sensitive balancing test to determine whether

the defendant has been deprived of his right to a speedy trial.” Id.

7 Specifically, the court must consider the following factors: “(1) the

length of the delay; (2) the reason for the delay; (3) the defendant’s

assertion of the right; and (4) prejudice to the defendant from the

delay.” Id.

Because “[a]pplication of the Barker-Doggett balancing test to

particular cases is committed to the sound discretion of the trial

courts,” this Court “accept[s] the trial court’s factual findings unless

they are clearly erroneous, and we review the trial court’s evaluation

of each factor and its balancing of the factors — its ultimate

judgment — only for abuse of discretion.” Palmer, 318 Ga. at 516 (2)

(citation and punctuation omitted). “[I]f the trial court’s factual

findings are clearly erroneous or the trial court significantly

misapplies the law,” we will affirm the trial court’s exercise of

discretion “only if [we] can conclude that, had the trial court used

the correct factual and legal analysis, it would have had no

discretion to reach a different judgment.” Redding v. State, 318 Ga.

225, 227 (1) (897 SE2d 801) (2024) (citation and punctuation

omitted). “If the trial court would still have discretion to reach a

8 different judgment, we remand for the trial court to reweigh the

factors and exercise its discretion using the correct factual and legal

analysis.” Id.

In this case, the trial court began its analysis by finding that

the “[l]ength of [d]elay” was “presumptively prejudicial” because

“the case ha[d] been pending more than one year,” and that “an

analysis into the remaining factors in the four-factor analysis” was

therefore “require[d].” Turning next to the reason-for-the-delay

factor, the court found that the factor was neutral and did not weigh

against either party because the trial had been delayed due to the

COVID-19 pandemic and “[d]efense [counsel’s] requested

continuances based on approved leave for trial calendars.” The court

weighed the assertion-of-the-right factor against Appellant, finding

that he “failed to [timely] assert his statutory right to a speedy trial,”

and that he also failed to “timely” assert his “constitutional right to

a speedy trial” because he first asserted that right “three years after

arrest and two years after [i]ndictment.” The trial court also

weighed the prejudice factor against Appellant, concluding that he

9 had not provided any evidence that the delay impaired his ability to

defend himself, and that he had “failed to show actual anxiety and

concern with specific evidence of how the delay impaired his ability

to defend himself as required under Johnson v. State[,] 268 Ga. 416

[(490 SE2d 91)] (1997).” Finally, considering the factors together,

the court concluded that, “[a]lthough the length of delay [was]

presumptively prejudicial, [Appellant] ha[d] failed to meet the other

three factors” because one of the three factors did not weigh against

either party and the other two factors weighed against Appellant.

(a) It is undisputed on appeal, and we agree, that the trial court

correctly determined that a presumption of prejudice arose in this

case. Appellant was detained for more than four years without his

case being brought to trial, and “a delay greater than one year is

typically presumed to be prejudicial.” McCullum v. State, 318 Ga.

485, 495 (4) (899 SE2d 171) (2024) (citation and punctuation

omitted). See also Palmer, 318 Ga. at 516 (2) (a) (i) (“[T]he length of

the delay ordinarily is measured from the earlier of the date of the

defendant’s arrest or indictment (or other formal accusation) to the

10 date that his trial started.”). As explained below, however, the trial

court made significant factual and legal errors in assessing the four

Barker-Doggett factors.

(b) “The length of the pretrial delay in absolute terms plays a

role in the threshold determination of presumptive prejudice.”

Redding, 318 Ga. at 227 (2) (a) (citation and punctuation omitted;

emphasis in original). “However, it also wears another hat as one of

the four interrelated criteria that must be weighed in the balance at

the second stage of the Barker-Doggett analysis.” Id. (citation and

punctuation omitted). “While similar, the presumptive prejudice

threshold and the length-of-delay factor are separate inquiries.” Id.

“In considering the length of the delay, a court must consider

whether delay before trial was uncommonly long” and must

“assign[ ] weight” to this factor. Id. at 227-228 (2) (a), 232 (2) (e)

(citation and punctuation omitted).

Here, however, the trial court considered the length of the

delay only with regard to the presumption of prejudice and gave no

consideration to the length-of-the-delay factor: the court did not

11 calculate the length of the delay, address whether the delay was

uncommonly long, or assign weight to the length-of-the-delay factor.

See Redding v. State, 313 Ga. 730, 732, 735-736 (2) (873 SE2d 158)

(2022) (vacating and remanding where the trial court “did not

explicitly calculate the length of the delay,” did not “consider[ ] [the

length-of-the-delay factor] separately,” and “failed to weigh each

Barker factor”). See also Goins v. State, 306 Ga. 55, 57-58 (2) (b) (829

SE2d 89) (2019) (“[W]e have explained that it is imperative that the

trial court enter findings of fact and conclusions of law consistent

with Barker” because, “[a]bsent such findings, there is no exercise of

discretion for this Court to review.” (citations and punctuation

omitted)). Instead, the trial court conflated the presumption-of-

prejudice inquiry at step one of the Barker-Doggett framework with

the length-of-the-delay factor at step two of the framework, stating

with respect to the “[l]ength of [d]elay” factor only that the delay was

“presumptively prejudicial.” In equating these distinct inquiries and

failing to give any consideration to the length-of-the-delay factor, the

trial court “significantly misapplie[d] the law.” Redding, 318 Ga. at

12 227 (1), (2) (a) (citation and punctuation omitted).

(c) In considering the reason-for-the-delay factor, “the trial

court must consider which party was responsible for the delay,

whether the delay was intentional, and, if it was intentional, what

the motive was for seeking or causing the delay.” Redding, 318 Ga.

at 228 (2) (b) (citation and punctuation omitted). “As to the amount

of weight assigned to this factor, different weights should be

assigned to different reasons.” Id. (citation and punctuation

omitted). For example, “[a] deliberate attempt to delay the trial in

order to hamper the defense should be weighted heavily against the

government,” whereas “an unintentional delay, such as that caused

by the prosecuting attorney’s mere negligence or the trial court’s

overcrowded docket, should be weighted less heavily [against the

government].” Id. at 228-229 (2) (b) (citation and punctuation

omitted). And, “[o]f course, [any] delay caused by the defense weighs

against the defendant.” Id. at 229 (2) (b) (citation and punctuation

omitted).

The trial court here attributed the delay to two factors: the

13 COVID-19 pandemic and defense counsel’s requests for

continuances to take leaves of absence. On appeal, Appellant does

not challenge the weight that the trial court afforded to the portion

of the delay attributable to the COVID-19 pandemic and the related

judicial-emergency order.4 But Appellant correctly argues that the

4 During the August 12, 2024 hearing, defense counsel conceded that the

delay caused by the COVID-19 pandemic and the associated judicial- emergency order was “a nullity in terms of [the court’s] assessment” that “can’t be weighed” against either party. Because Appellant conceded that point below and does not raise the issue on appeal, we need not decide here whether the Court of Appeals cases addressing COVID-19-related delays in the speedy-trial context are correct. See Smith v. State, 373 Ga. App. 33, 41 (2) (b) (i) (907 SE2d 327) (2024) (“Neither party is responsible for the delays caused by the COVID- 19 pandemic,” and “delay during the judicial emergency declared during the COVID-19 pandemic should be considered a neutral factor under the Barker- Doggett framework, not weighted against either party.”); Foreman v. State, 371 Ga. App. 838, 845 (1) (b) (ii) (903 SE2d 303) (2024) (holding that “a delay caused by the COVID-related judicial emergency may not be weighted against either party”); Shriver v. State, 371 Ga. App. 580, 584 (2) (901 SE2d 721) (2024) (“[T]he State cannot be faulted for the periods in 2020 and 2021 during which no jury trials were held, and the delays caused by overcrowded dockets following the resumption of jury trials are not entitled to significant weight.”); State v. Adams, 364 Ga. App. 864, 868 (2) (b) (i) (876 SE2d 719) (2022) (“[T]he delay of just under 16 months attributable to the [COVID-19-related] statewide judicial emergency is not weighed against either party.”); Labbee v. State, 362 Ga. App. 558, 566-567 (2) (b) (iv) (869 SE2d 520) (2022) (holding that “neither party is responsible for the delays caused by the COVID-19 pandemic” because “the pandemic is a catastrophic and unique event beyond either party’s control,” and that, “even if the State can be said to have caused the pandemic- related delay by suspending jury trials, the delay was justified and appropriate” and therefore “should not be weighed against the State” (citations and punctuation omitted)). 14 trial court clearly erred to the extent that it found that the trial was

delayed due to defense counsel’s requests for continuances of the

trial to take leaves of absence. The record shows that, although

defense counsel filed several notices regarding leaves of absence,

those notices did not include requests to delay the trial. See Redding,

318 Ga. at 229-230 (2) (b), (c) (holding that the record did not support

a finding that the defendant had contributed to the delay because,

although the defendant requested additional time to prepare for his

probation revocation and defense counsel asked to reschedule a

calendar call due to a vacation, the defendant “never requested a

delay of trial” (emphasis in original)). The record contains only one

request for a continuance filed by defense counsel, which was sought

for an unspecified reason. And there is no indication in the record

that the request was granted, such that it could have contributed to

the delay of trial.

Further, although “defense [counsel’s] requests for leaves of

absences may be considered in determining the reason for the

delay,” Cash v. State, 307 Ga. 510, 517 (2) (a) (ii) (837 SE2d 280)

15 (2019), it is unclear here whether the trial court found that defense

counsel’s leaves of absence themselves (as opposed to the purported

continuances granted for leaves of absence) contributed to the delay

in bringing the case to trial. And “[i]t is not the role of an appellate

court to weigh the Barker factors in the first instance.” Redding, 313

Ga. at 735 (2).5

(d) In assessing the assertion-of-the-right factor, the trial court

must consider “whether the defendant asserted the right to a speedy

trial in due course.” Redding, 318 Ga. at 229 (2) (c) (citation and

punctuation omitted). “This factor focuses on the timing, form, and

vigor of the accused’s demands to be tried immediately.” Id. (citation

and punctuation omitted). “Although an accused need not demand a

trial at the first available opportunity, his failure to assert his right

with reasonable promptness will ordinarily weigh heavily against

him.” Id. (citation and punctuation omitted).

On appeal, Appellant contends that the trial court abused its

5 On remand, the trial court should also consider whether Appellant’s

substitution of counsel contributed to the delay. We express no opinion on that issue. 16 discretion in weighing the assertion-of-the-right factor against him

based on a clearly erroneous finding that he first asserted his

constitutional right to a speedy trial three years after his arrest and

two years after his indictment. We agree that this factual finding

was clearly erroneous, as the record shows that Appellant timely

asserted his constitutional right to a speedy trial two months after

he was arrested, before he was indicted. See State v. Pickett, 288 Ga.

674, 676 (2) (c) (3) (706 SE2d 561) (2011) (“[A] defendant may assert

his constitutional right to a speedy trial at any time after he is

arrested; he need not wait until indictment.”). The trial court was

not required to afford significant weight to Appellant’s pre-

indictment demand for a speedy trial. See Barker, 407 U. S. at 529

(III) (noting that a court need not “attach[ ] significant weight to a

purely pro forma” demand for speedy trial). But the clearly

erroneous finding that Appellant did not timely file a constitutional

demand for a speedy trial played a central role in the trial court’s

decision to weigh this factor against Appellant, and the court may

have weighed the factor differently absent this error.

17 (e) There are “three types of prejudice that are relevant” in

assessing whether a defendant has suffered prejudice from a delay

in bringing his case to trial: (1) “oppressive pretrial incarceration,”

(2) “anxiety and concern” of the defendant and (3) “impairment of

the accused’s ability to defend against the charges due to dimming

memories and loss of exculpatory evidence.” Palmer, 318 Ga. at 523

(2) (b) (iv). For the first two types of prejudice to weigh in favor of a

defendant, the defendant must introduce evidence of “oppressive

pretrial incarceration or anxiety and concern” that goes “beyond that

which necessarily attends confinement in a penal institution.”

Harris v. State, 284 Ga. 455, 456 (667 SE2d 361) (2008) (citation and

punctuation omitted). See also Jackson v. State, 272 Ga. 782, 786-

787 (534 SE2d 796) (2000) (noting that establishing oppressive

pretrial incarceration requires “proof of sub-standard conditions or

other oppressive factors beyond those that necessarily attend

imprisonment” (citation and punctuation omitted)).

On appeal, Appellant “concedes that the passage of time has

not resulted in any demonstrative impairment to his ability to

18 prepare and present his defense.” But he argues that the trial court

abused its discretion by failing to consider his testimony from the

August 12, 2024 hearing, which he contends provided evidence that

he suffered prejudice from delay based on oppressive pretrial

incarceration and anxiety and concern. We agree that the trial court

erred in failing to consider that evidence.

As an initial matter, it appears that the trial court believed

that this Court’s statement in Johnson that “[the defendant] must

show actual anxiety and concern and specific evidence of how the

delay impaired his ability to defend himself,” Johnson, 268 Ga. at

418 (2), rendered evidence of oppressive jail conditions and anxiety

and concern irrelevant. But the trial court misread Johnson,

misquoting the case as having said that a defendant must “show

actual anxiety and concern with specific evidence of how the delay

impaired his ability to defend himself,” and taking this one

statement out of context. (Emphasis supplied.)

In fact, Johnson expressly identified “oppressive pretrial

incarceration” and “anxiety and concern of the defendant” as two of

19 the three factors that a court is “require[d]” to consider in assessing

prejudice from a delay in bringing a case to trial. Johnson, 268 Ga.

at 417 (2). And in analyzing the prejudice from delay, Johnson

considered the evidence — or lack thereof — relevant to each of the

three prejudice factors. Johnson began its analysis by concluding

that the length of the defendant’s detention, standing alone, did not

show that the defendant suffered prejudice from oppressive pretrial

incarceration. See id. at 418 (2) (citing Boseman v. State, 263 Ga.

730 (438 SE2d 626) (1994), for the proposition that “a 21-month

delay is insufficient to raise an inference of actual prejudice”);

Boseman, 263 Ga. at 733 (1) (d) (noting that, “[w]ith regard to . . .

oppressive pretrial incarceration, . . . the 27 month delay, standing

alone, was oppressive,” but “that pretrial detention alone [does not]

permit[ ] an automatic inference of enough prejudice to balance that

factor in a defendant’s favor without proof of sub-standard

conditions or other oppressive factors beyond those that necessarily

attend imprisonment” (citation and punctuation omitted)),

overruled on other grounds by Sosniak v. State, 292 Ga. 35 (734

20 SE2d 362) (2012). Johnson noted that, as a result, the prejudice

factor could not weigh in the defendant’s favor absent evidence that

the defendant suffered “actual anxiety and concern” or an “impaired

. . . ability to defend himself.” Johnson, 268 Ga. at 418 (2). And as to

those factors, Johnson concluded that “[t]here [was] no evidence in

the record of [the defendant’s] anxiety or concern” and “no evidence”

to support the defendant’s “speculat[ion]” that the delay impaired

his defense. Id. In other words, Johnson determined that neither

oppressive pretrial incarceration nor anxiety and concern prejudiced

the defendant because there was insufficient evidence regarding

those factors, not because those factors did not matter. The trial

court therefore erred here in concluding that Johnson authorized it

to disregard entirely any evidence of oppressive pretrial

incarceration or anxiety and concern.

Here, Appellant testified about the nature of his pretrial

incarceration, as well as the anxiety and concern he experienced

while incarcerated. If credited, some of that testimony —

particularly his testimony about being unable to get treatment for a

21 serious medical condition without a court order, about suffering a

brutal stabbing while incarcerated, and about jail employees

participating in violent crimes against detainees — could have

supported a finding that he suffered “oppressive pretrial

incarceration or anxiety and concern beyond that which necessarily

attends confinement in a penal institution.” Harris, 284 Ga. at 456

The trial court was not required to credit Appellant’s

testimony. See Davis v. State, 315 Ga. 252, 259 (2) (d) (iv) (882 SE2d

210) (2022) (trial court did not clearly err in discrediting the

defendant’s testimony about jail conditions and his anxiety due to

incarceration where there was no “contemporaneous documentation

of [the defendant’s] complaints about jail conditions” and the court

found that the defendant “was obviously exaggerating in his

testimony” (punctuation omitted)). But the court’s order indicates

that it disregarded Appellant’s testimony based on a misreading of

Johnson, not based on a negative credibility finding. And the trial

court may have weighed this factor differently if it had properly

22 considered all of the evidence of record, including Appellant’s

testimony.

(f) In sum, the trial court failed to make any findings with

respect to the length-of-the-delay factor or to assign that factor

weight; the court made “factual findings [that were] clearly

erroneous” with respect to the reason-for-the-delay and the

assertion-of-the-right factors; and the court “significantly

misapplie[d] the law” regarding the prejudice factor. Redding, 318

Ga. at 227 (1) (citations and punctuation omitted). Because the trial

court would not have been compelled to deny Appellant’s motion to

dismiss if it had used the correct factual and legal analysis, we

vacate the trial court’s order denying Appellant’s motion to dismiss

the indictment on constitutional speedy-trial grounds and remand

for further consideration of the motion consistent with this opinion.

See id. at 232-233 (2) (e) (vacating and remanding because, “[w]hile

the trial court may be authorized to deny [the defendant’s] speedy-

trial motion after assigning weight and balancing anew the four

factors in accordance with the applicable law and directions outlined

23 in this opinion, we [could not] say the trial court [was] necessarily

compelled to do so” (footnote omitted)).

Judgment vacated and case remanded. Peterson, CJ, Warren, PJ, and Bethel, Ellington, McMillian, and Pinson, JJ, concur. LaGrua, J., disqualified.

PETERSON, Chief Justice, concurring.

I join the Court’s opinion in full. I write separately to point out

that our speedy-trial caselaw appears to have gone astray.

Specifically, over time we appear to have adopted too high a

standard for the prejudice a defendant who is incarcerated pre-trial

must demonstrate in order to secure dismissal of an indictment

against him on constitutional speedy-trial grounds. In an

appropriate case, we should reconsider that precedent, the logic of

which would suggest that there is no speedy-trial problem with

leaving an innocent-until-proven-guilty defendant in jail without

trial for decades so long as they’re not mistreated there.

The United States Supreme Court has identified three

interests the constitutional right to a speedy trial “was designed to

24 protect”: “to prevent oppressive pretrial incarceration[,]” “to

minimize anxiety and concern of the accused[,]” and “to limit the

possibility that the defense will be impaired.” Barker v. Wingo, 407

U.S. 514, 532 (92 SCt 2182, 33 LE2d 101) (1972); see also Doggett v.

United States, 505 U.S. 647, 654 (112 SCt 2686, 120 LE2d 520)

(1992). The Supreme Court has said that “[o]f these forms of

prejudice, the most serious is the last, because the inability of a

defendant adequately to prepare his case skews the fairness of the

entire system.” Doggett, 505 U.S. at 654 (citation and punctuation

omitted). But it also has made clear that “prejudice to a defendant

caused by delay in bringing him to trial is not confined to the

possible prejudice to his defense in those proceedings.” Moore v.

Arizona, 414 U.S. 25, 26-27 (94 SCt 188, 38 LE2d 183) (1973).

Indeed, there is some evidence that as a matter of original meaning

the speedy-trial right primarily protects the accused from prolonged

detention without an adjudication of guilt. See United States v.

Olsen, 21 F4th 1036, 1059-1064 (9th Cir. 2022) (Bumatay, J.,

concurring in the denial of rehearing en banc).

25 Moreover, the Supreme Court has “expressly rejected the

notion that an affirmative demonstration of prejudice [is] necessary

to prove a denial of the constitutional right to a speedy trial,” saying

that none of the four factors that comprise the Barker-Doggett

framework is “‘either 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.’” Moore, 414 U.S. at 26 (quoting

Barker, 407 U.S. at 533). Because many speedy-trial claims do not

involve pre-trial incarceration, see, e.g., Doggett, 505 U.S. at 654-

658 (considering prejudice from eight-and-a-half-year lag between

indictment and arrest), one critical consideration is whether the

accused is in fact incarcerated prior to trial. See United States v.

Garcia, 59 F4th 1059, 1069 (10th Cir. 2023) (noting that “because

the seriousness of a post-accusation delay worsens when the wait is

accompanied by pretrial incarceration, oppressive pretrial

incarceration is the second most important” of the possible forms of

prejudice the speedy-trial right guards against (citation and

26 punctuation omitted)).

It seems to me that the question of whether that pre-trial

incarceration is sufficiently “oppressive” to be prejudicial turns not

only on the conditions of that incarceration, but also separately on

how long a defendant is being held without trial. This is consistent

with federal caselaw saying that long pre-trial incarceration alone

can be prejudicial. See Garcia, 59 F4th at 1069 (“Some cases of

extreme delay excuse the defendant’s obligation under this factor to

show specific evidence of prejudice, but generally the court requires

at least a six-year delay before allowing the delay itself to constitute

prejudice.”); United States v. Black, 918 F3d 243, 265-266 (2d Cir.

2019) (noting that “sheer length of time at issue here” — five years

and eight months of pre-trial detention — “makes this pre-trial

detention egregiously oppressive” before finding speedy-trial

violation despite only “modest” effect on the defendants’ defense

(citation and punctuation omitted)); United States v. Dunn, 345 F3d

1285, 1297 (11th Cir. 2003) (suggesting that defendant could

establish prejudice by showing that his defense was harmed or that

27 “the conditions under which he was held or the length of his

confinement rendered the delay a constitutional violation”

(emphasis supplied)); Hakeem v. Beyer, 990 F2d 750, 762 (3d Cir.

1993) (noting that “time alone may, in some cases, rise to the level

of oppressive pretrial incarceration” before finding that defendant

could not prevail based on oppressive incarceration given that, upon

conviction, defendant received credit for all of the pre-trial time he

had served and he had “not pointed to any evidence of additional,

specific prejudice flowing from the delay” (citation and punctuation

omitted)).6 Additionally, I note that federal courts, including the

6 A number of post-conviction federal cases considering speedy trial claims have found lengthy pre-trial incarceration not prejudicial where the defendant received credit for time served on his sentence. See, e.g., United States v. Frye, 489 F3d 201, 213 (5th Cir. 2007) (“A lengthy pretrial incarceration does not inherently offend a defendant’s liberty interests. See, e.g., Gray v. King, 724 F2d 1199, 1204 (5th Cir. 1984) (finding no oppressive pretrial incarceration where defendant received credit for pretrial incarceration to be applied [to] his sentence). Frye was ultimately sentenced to life in prison without the possibility of release. Therefore, Frye, like the defendant in Gray, did not suffer any increase in his total time spent in prison as the result of pretrial delays.”). But those post-conviction cases can have no relevance to pre-trial speedy-trial claims like the one here, in which the Constitution’s presumption of innocence prevents a reviewing court from assuming that there will be an eventual sentence on which to afford credit for time served. 28 Supreme Court, have concluded that substantial delays in bringing

a case to trial — even without pre-trial incarceration — are

presumptively prejudicial to the defense. See, e.g., Doggett, 505 U.S.

at 657-658 (eight-and-a-half-year delay from indictment to arrest,

with six years attributable to the government, required grant of

motion even absent proof of effect on defense); United States v.

Mendoza, 530 F3d 758, 764-765 (9th Cir. 2008) (government did not

rebut strong presumption of prejudice from eight-and-a-half-year

delay between indictment and arrest during which the government

did not exercise due diligence in finding the defendant). If a

substantial delay in bringing the case to trial where the defendant

is not incarcerated can constitute prejudice, then surely some

substantial period of incarceration can itself constitute prejudice to

support dismissal — after consideration of all of the Barker-Doggett

factors — on speedy-trial grounds.

Despite all of this, we have said that in order to show

“oppressive” pre-trial incarceration, a defendant must show

something more than a lengthy pre-trial incarceration. See, e.g.,

29 Redding v. State, 318 Ga. 225, 231-232 (2) (d) (897 SE2d 801) (2024)

(concluding in case involving presumptively prejudicial 25-month

delay that trial court did not err in weighing the prejudice factor

heavily against defendant, given that defendant failed to show

prejudice from loss of witness and presented “no specific showing” of

oppressive incarceration or anxiety and concern of the accused);

Davis v. State, 315 Ga. 252, 259 (2) (d) (iv) (882 SE2d 210) (2022)

(concluding in case involving presumptively prejudicial 30-month

delay that trial court did not abuse its discretion in determining that

defendant failed to establish actual prejudice given the trial court’s

assessment that defendant was “obviously exaggerat[ing]” in his

testimony about conditions at the Fulton County jail and had not

provided any “contemporaneous documentation” of his complaints);

State v. Johnson, 291 Ga. 863, 867 (2) (d) (734 SE2d 12) (2012)

(concluding in case involving presumptively prejudicial five-year

delay between arrest and dismissal of indictment that, although

“prejudice properly may be presumed in this case from the length of

the pretrial delay[,]” trial court findings that defendant was

30 subjected to oppressive pretrial incarceration and experienced

unusual anxiety as a result of his prosecution and incarceration

were erroneous given that he had made no showing that he had been

subjected to “substandard” jail conditions and/or an “unusual

showing” about anxiety and concern (citation and punctuation

omitted)); Weis v. State, 287 Ga. 46, 54 (1) (d) (694 SE2d 350) (2010)

(concluding in case involving presumptively prejudicial three-and-a-

half-year period from the date of defendant’s arrest to the case being

put on the trial calendar that “there has been no oppressive pre-trial

incarceration, as Weis has made no showing that he has been

subjected to substandard conditions in the county jail where he has

been housed.”); Ruffin v. State, 284 Ga. 52, 57-58 (2) (b) (i), 65 (2) (b)

(iv) (663 SE2d 189) (2008) (trial court properly weighed prejudice

factor against defendant who did not show either impairment of his

defense or “oppressive pretrial incarceration or anxiety and concern

beyond that which necessarily attends confinement in a penal

institution[,]” despite fact that pre-trial delay of two years, two

months, and 23 days, with defendant in jail for all but about three

31 months of that time, was “unusual even in comparison with other

non-capital murder cases”); Jackson v. State, 272 Ga. 782, 785 (534

SE2d 796) (2000) (defendant who experienced “unquestionably

burdensome” pre-trial incarceration of nearly two years nonetheless

“failed to swing the balance of prejudice in his favor” given that he

“failed to offer the specific evidence required to support his general

claims of anxiety, poor conditions in the Fulton County jail, and that

his defense may be impaired by the delay”); but see Williams v.

State, 277 Ga. 598, 600-601 (1) (d) (592 SE2d 848) (2004) (trial court

correctly found that defendant “had failed to show any particular

form of prejudice other than the mere fact of his” more than five-

year pre-trial incarceration but erred to the extent that it found that

this failure weighed heavily against the defendant, “in light of the

extraordinarily long delay” in bringing case to trial).

In some of these decisions, we did not cite any authority for the

notion that a defendant must show something more than typical

conditions of incarceration in order for their pre-trial incarceration

to be considered “oppressive” for purposes of showing prejudice from

32 pre-trial delay. See Weis, 287 Ga. at 54 (1) (d); Ruffin, 284 Ga. at 65

(2) (b) (iv). In other cases, we have allowed holdings on particular

facts to morph into a bright-line rule.

In Boseman v. State, 263 Ga. 730 (438 SE2d 626) (1994),

overruled on other grounds by Sosniak v. State, 292 Ga. 35, 40 (2)

(734 SE2d 362) (2012), we said we would assume that a 27-month

delay was “oppressive,” while noting that “other courts have

declined to hold that pretrial detention alone ‘permits an automatic

inference of enough prejudice to balance that factor in [a

defendant’s] favor without proof of sub-standard conditions or other

oppressive factors beyond those that necessarily attend

imprisonment.’” Boseman, 263 Ga. at 733 (1) (d). For this

proposition, we cited only a Third Circuit case, Hakeem v. Beyer. But

Hakeem, although it cited Third Circuit caselaw for the proposition

that “[t]he seriousness of a deprivation of liberty due to pretrial

incarceration will vary with the conditions of the defendant’s

confinement[,]” held merely that “pretrial detention, coupled with a

fourteen and one-half month delay” does not permit such an

33 “automatic inference of enough prejudice to balance that factor in a

petitioner’s favor without proof of sub-standard conditions or other

imprisonment.” 990 F2d at 761 (citation and punctuation omitted;

emphasis supplied). Hakeem thus did not hold that no length of pre-

trial incarceration would be sufficient to establish prejudice on its

own, only that it was not sufficient in that case.

And yet, in Johnson v. State, 268 Ga. 416 (490 SE2d 91) (1997),

we characterized Boseman as having held that a “27-month delay

does not raise [an] inference of prejudice” and relied on that to

conclude that “a 21-month delay is insufficient to raise an inference

of actual prejudice.” Johnson, 268 Ga. at 418 (2). We relied on

Boseman for the proposition that “[t]hus, Johnson must show actual

anxiety and concern and specific evidence of how the delay impaired

his ability to defend himself.” Johnson, 268 Ga. at 418 (2). We later

cited Johnson for that proposition in a case in which we assumed

that a 25-month delay constituted “oppressive pretrial

incarceration” but nonetheless concluded that the prejudice factor

34 favored the State given the defendant’s failure “to show that he

suffered undue anxiety or concern attendant to that incarceration”

or offer specific evidence of impairment of his defense. Mullinax v.

State, 273 Ga. 756, 759 (2) (545 SE2d 891) (2001) (citation and

punctuation omitted).

And in Jackson, we cited Boseman for the proposition that a

27-month delay (which we assumed was oppressive in Boseman)

“does not automatically establish prejudice in the defendant’s favor

for purposes of the Barker analysis absent ‘proof of sub-standard

conditions or other oppressive factors beyond those that necessarily

attend imprisonment[,]’” and thus concluded that a defendant could

not show prejudice from a nearly two-year period of pre-trial

incarceration given that he had “failed to offer the specific evidence

required to support his general claims of anxiety, poor conditions at

the Fulton County jail, and that his defense may be impaired by the

delay[.]” Jackson, 272 Ga. at 785. We since have cited Jackson as

standing for the general rule that “to show oppressiveness,

defendant must offer specific ‘proof of sub-standard conditions or

35 other oppressive factors beyond those that necessarily attend

imprisonment[.]’” Davis, 315 Ga. at 259 (2) (d) (iv). In short, we seem

to have turned holdings about particular facts into a bright-line rule

that even lengthy pre-trial incarceration can never be prejudicial

without more. Such a rule is obviously wrong; it suggests that the

right to a speedy trial does not prevent leaving an innocent-until-

proven-guilty defendant in jail without trial for decades so long as

they’re not mistreated there. And none of our cases have ever cited

any authority that actually explains why our bright-line rule could

be correct.7

7 It’s worth noting, too, that in articulating the harms an accused suffers

as a result of pre-trial incarceration, aside from the manner in which it hinders the preparation of his defense, the Supreme Court has described those harms in terms that seem quaint given modern jail conditions in at least some portions of this state: “The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time.” Barker, 407 U.S. at 532-533 (citation omitted). Thus, our assumption that a defendant must show something more than lengthy pre-trial incarceration in order to show “oppressive” incarceration may also be based on outmoded assumptions about what entails “factors beyond those that necessarily attend imprisonment.” And to the extent that we do require a defendant to make such a showing, we should assume that evidence that a pre-trial detainee is experiencing conditions of detention qualitatively worse than the “enforce[d] idleness” described in Barker constitutes evidence of “oppressive” incarceration. 36 But Nelson does not ask us to reconsider our caselaw, in large

part because — as the Court’s opinion ably explains — he has

presented evidence of more than merely a lengthy incarceration.

Indeed, his testimony that he has been violently assaulted during

his confinement8 and denied medical care absent a court order is

particularly disturbing and — as the Court’s opinion today

recognizes — necessary for the trial court to consider in its speedy-

trial analysis on remand. But when the issue is properly presented,

we should examine our precedent regarding what is necessary to

show prejudice for purposes of the Barker factors.

In the meantime, where, as here, the case has yet to be tried, a

remand for a new order such as that we issue today further delays

the trial of the case. This means that a defendant — who stands

merely charged, not convicted — continues to sit in jail. And “in

evaluating the presumptive prejudice that is caused simply by the

passage of time, courts look to the total elapsed time since the

8 The Georgia Constitution explicitly protects the right not to be abused

while incarcerated. See Ga. Const. of 1983, Art. I, Sec. I, Par. XVII (“nor shall any person be abused in being arrested, while under arrest, or in prison”). 37 defendant’s speedy trial rights attached, and that time is increasing

with every passing day.” Phan v. State, 287 Ga. 697, 701 (699 SE2d

9) (2010) (Nahmias, J., concurring). Thus, any delay in the issuance

of a new order itself may strengthen the case for dismissal. See

Williams, 277 Ga. at 601 (1) (d) (“[G]reater 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.”). “In

short, after this case is remanded, time will not be on the State’s

side[.]” Phan, 287 Ga. at 701 (Nahmias, J., concurring); see also

Ruffin, 284 Ga. at 66 (3) (noting in affirming denial of motion to

dismiss on speedy-trial grounds that “the clock is still ticking” and

“any further delay in bringing [defendant] to trial not attributable

to [defendant] runs a serious risk of violating [defendant’s] right to

speedy trial”).

38 Decided May 6, 2025.

Murder, etc. Fulton Superior Court. Before Judge Cox.

Maryann F. Blend, for appellant.

Fani T. Willis, District Attorney, Kevin C. Armstrong, Charles

A. Jones, Jr., Donita J. Morris, Assistant District Attorneys;

Christopher M. Carr, Attorney General, Beth A. Burton, Deputy

Attorney General, Clint C. Malcolm, Meghan H. Hill, Senior

Assistant Attorneys General, for appellee.