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Defendant Virgil Johnson was convicted of aggravated assault and armed robbery by the circuit court. The Court of Appeals affirmed his conviction and sentence. On appeal, Defendant asserted that his right to a speedy trial was violated because 860 days passed between the time he was arrested and the date of his trial. Upon careful consideration of the trial court record and the applicable legal authority, the Supreme Court agreed with the appellate court, finding "no merit in [Defendant's] averment."
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IN THE SUPREME COURT OF MISSISSIPPI
VIRGIL N. JOHNSON
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
MOTION FOR REHEARING FILED:
HON. TOMIE T. GREEN
HINDS COUNTY CIRCUIT COURT
DONALD W. BOYKIN
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
ROBERT SHULER SMITH
CRIMINAL - FELONY
AFFIRMED - 06/30/2011
PIERCE, JUSTICE, FOR THE COURT:
Virgil Johnson was convicted of aggravated assault and armed robbery in Hinds
County Circuit Court. Johnson appealed, and the Court of Appeals affirmed his conviction
and sentence. We granted certiorari. Because Johnson’s right to a speedy trial was not
violated, and because Johnson was not prejudiced by the trial court’s refusal to grant
Johnson’s for-cause challenges of two prospective jurors, we affirm the trial court and the
Court of Appeals.
FACTS AND PROCEDURAL HISTORY
On February 28, 2006, Jeremy Boyd was shot four times at his home in Jackson,
Mississippi. While at the hospital, Boyd told police officers that he had been shot by Virgil
Johnson. Boyd also identified Johnson from a photographic lineup. On April 20, 2006,
officers arrested Johnson, and he was indicted on February 6, 2007, and charged with
aggravated assault and armed robbery. On April 4, 2007, a year after Johnson was arrested,
he moved the court for a “fast and speedy trial.” Johnson was arraigned on April 16, 2007.
His bond was set at $100,000, which he could not pay, so he remained in jail. Johnson filed
a motion for a reduction in bond. On December 10, 2007, Johnson moved to dismiss for
failure to grant a speedy trial. The trial court did not address any of Johnson’s motions.
Johnson’s trial was held March 11, 2008. At trial, Boyd testified as to what had
occurred on the day he was shot. According to Boyd, he invited Johnson over to his home
because he had planned to buy a vehicle and wanted Johnson’s advice. Boyd was a
professional barber, and when Johnson arrived he offered to give him a haircut. After the
haircut, Boyd recounted that he and Johnson smoked weed and played video games. Boyd
noticed that Johnson had become quiet, and he asked Johnson if things were all right. Boyd
continued to play the video game. Boyd recalled that his gun was on the floor beside his feet,
and that he saw Johnson get up. Boyd said he thought Johnson had gone to the restroom, but
instead, Johnson came up behind him and shot him in the back of the neck. Boyd testified
that Johnson immediately shot him again. Boyd said that Johnson shot him two more times,
even though he was pretending to be dead. Then, Johnson flipped Boyd over and took
$1,900 that Boyd had planned to use to purchase the vehicle. According to Boyd, Johnson
then fled the scene. Boyd called 911.
The jury convicted Johnson of aggravated assault and armed robbery. The Court of
Appeals affirmed the conviction, finding no reversible error. Johnson petitioned for writ of
certiorari, which this Court granted, and raises two issues.
Whether Johnson’s right to a speedy trial was violated.
Whether Johnson’s for-cause challenges should have been granted.
Whether Johnson’s right to a speedy trial was violated.
Johnson asserts that his constitutional right to a speedy trial was violated, because 680
days passed between the time of arrest and the date of his trial. The Court of Appeals found
no merit in Johnson’s averment. We agree with the Court of Appeals, and affirm the trial
The Sixth Amendment to the United States Constitution provides an accused the right
to a “speedy and public trial.” 1 And the Mississippi Constitution establishes an almost
identical protection.2 In Barker v. Wingo, the Supreme Court provided four factors to
consider whenever a defendant claims that his constitutional right to a speedy trial has been
violated: length of delay, reasons for delay, whether the defendant asserted his right to a
speedy trial, and whether the defense suffered any prejudice from the delay.3 Where the
length of delay exceeds eight months, the delay is presumptively prejudicial and triggers
U.S. Const. amend. VI.
Miss. Const. art. 3, § 26.
Jenkins v. State, 947 So. 2d 270, 276 (Miss. 2006); Manix v. State, 895 So. 2d 167,
176 (Miss. 2005) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L.
Ed. 2d 101 (1972)).
further analysis of the remaining three Barker factors. These factors must be considered
together with other relevant circumstances.4
Length of delay
In Smith v. State, this Court determined that a delay of eight months or longer is
presumptively prejudicial.5 But let us be clear; when the delay is presumptively prejudicial
that does not mean that actual prejudice to the defendant exists. Rather, actual prejudice is
determined at a different point in the Barker analysis. A “presumptively prejudicial delay”
acts as a triggering mechanism for further inquiry into the Barker analysis, and shifts the
burden to the State to show the reason for delay.6 Even the United States Supreme Court
recognized this logic in Doggett v. United States, when it noted that “ as the term is used in
this threshold context, ‘presumptive prejudice’ does not necessarily indicate a statistical
probability of prejudice; it simply marks the point at which courts deem the delay
unreasonable enough to trigger the Barker inquiry.7
Here, 680 days passed between Johnson’s arrest and his trial, so the delay is
presumptively prejudicial. The benefit of this presumption is further examination of the
Barker, 407 U.S. at 533.
Smith v. State, 550 So. 2d 406, 408 (Miss. 1989).
Doggett v. U.S., 505 U.S. 647, 652, 112 S. Ct. 2686, 2691, 120 L. Ed. 2d 520 (1992);
Barker, 407 U.S. at 533; Moffett v. State, 49 So. 2d 1073, 1087-1088 (Miss. 2010); Jenkins,
947 So. 2d at 276-77; Manix, 895 So. 2d at 176.
Doggett, 505 U.S. at 652.
Barker factors,8 and the burden of persuasion shifts to the State to establish good cause for
Reasons for delay
The Court of Appeals found the record contained evidence of the delay and noted the
overcrowded docket as the reason. “Overcrowded dockets” falls within the realm of neutral
reasons for delay but should be considered since the “ultimate responsibility for such
circumstances must rest with the government.” 10 Contrary to what the dissent may believe,
the record sheds light on the reason for delay. The trial court found the delay was necessary
due to the backlog of cases, and noted that several, older cases were set before Johnson’s that
may have caused his case to be put off until the court’s next term.
Further, the State
provided three trial dates from the computer system used throughout Hinds County, which
showed that Johnson’s case had been set for trial three months after he was arraigned. At
most, this prong weighs slightly against the State.
Whether defendant asserted his right to a speedy trial.
The State bears the burden of bringing a defendant to trial.11 But where the defendant
Jenkins, 947 So. 2d at 276; Manix, 895 So. 2d at 176 (citing Barker, 407 U.S. at
Jenkins, 947 So. 2d at 276-77.
Barker, 407 U.S. at 531; State v. Magnusen, 646 So. 2d 1275, 1282 (Miss. 1994)
(citing Adams v. State, 583 So. 2d 165, 167 (Miss. 1991) (citations omitted)).
Ross, 605 So. 2d 17, 24 (Miss. 1992); Flores v. State, 574 So. 2d 1314, 1321 (Miss.
asserts his right to a speedy trial, “he gains far more points” under this prong of Barker.12
Johnson asserted his right to a speedy trial. This prong weighs in Johnson’s favor.
Prejudice to the defendant
We start this discussion with this Court’s inconsistent analysis of this prong, and
which party bears the risk of nonpersuasion. In State v. Ferguson, the Court proposed that
“[w]here the delay has been presumptively prejudicial, the burden falls upon the prosecution”
to show the lack of prejudice to the defendant.13 The Ferguson Court relied on a Fifth-Circuit
case, Prince v. Alabama,14 to support this proposition. In Prince, the Fifth Circuit held that
a defendant must first establish a prima facie case that his right to a speedy trial has been
violated before the burden shifts to the State to show that the defendant was not prejudiced
by the delay.15 The defendant in Prince claimed “that his defense has been impaired due to
the lapse of time both in the disappearance or death of key alibi witnesses and in the dimming
of the memories of those witnesses who were available at trial,” and the record held evidence
of personal prejudice to the defendant as well.16 Further, the defendant in Ferguson had
asserted claims of prejudice in the form of missing witnesses, and the record contained
evidence of such. So in both cases, each defendant produced evidence of prejudice before the
Thomas v. State, 48 So. 3d 460, 476 (Miss. 2010) (citing Jefferson v. State, 818 So.
2d 1099, 1107-1108 (Miss. 2002)); Brengettcy v. State, 794 So. 2d 987, 994 (Miss. 2001);
Jaco v. State, 574 So. 2d 625, 632 (Miss. 1990).
State v. Ferguson, 576 So. 2d 1252, 1255 (Miss. 1991).
Prince v. Alabama, 507 F. 2d 693 (5 Cir. 1975).
Id. at 706-707.
burden shifted to the State to show the lack thereof. But Johnson does not come close to
showing a prima facie case of actual prejudice, nor does the record reveal that Johnson
suffered any prejudice other than being incarcerated. This Court will not infer prejudice out
“of the clear blue.” 17
Until Ferguson, Mississippi caselaw did not require that the State bear the burden
under the fourth prong of Barker, where the delay was presumptively prejudicial.18 And even
after Ferguson, this Court has declined to shift the burden to the State in cases where the
delay was presumptively prejudicial.19
In Moffett v. State, the defendant was incarcerated for 1,656 days before his trial,
which the Court found presumptively prejudicial.20 But even so, the burden remained with
Moffett to show actual prejudice under the fourth prong of Barker.21 In Jenkins v. State,
626 days passed between Jenkins’s arrest and his trial, which the Court found to be
Manix, 895 So. 2d at 177 (citing Magnusen, 646 So. 2d at 1284); see also Moffett
v. State, 49 So. 2d at 1087-1088; Jenkins, 947 So. 2d at 276; Stark v. State, 911 So. 2d 447,
453 (Miss. 2005); Hersick v. State, 904 So. 2d 116, 124 (Miss. 2004); Sharp v. State, 786
So. 2d 372, 381 (Miss. 2001).
See Smith v. State, 550 So. 2d 406, 409 (Miss. 1989); Hughey v. State, 512 So. 2d
4, 8 (Miss. 1987); Beavers v. State, 498 So. 2d 788, 791-92 (Miss. 1986).
See Moffett, 49 So. 2d at 1087-1088; Jenkins, 947 So. 2d at 276 (Miss. 2006);
Manix, 895 So. 2d at 176 ; Price v. State, 898 So. 2d 641, 649-650 (Miss. 2005); Stark, 911
So. 2d at 453; Hersick, 904 So. 2d at 124; Sharp, 786 So. 2d at 381; Stogner v. State, 627
So. 2d 815, 819 (Miss. 1993).
Moffett, 49 So. 2d at 1086-1087.
presumptively prejudicial.22 The Court went on to discuss the remaining Barker factors. But
the Court’s analysis under the “prejudice” prong of Barker never included shifting the
burden from the defendant to the State to show the lack of actual prejudice, even though the
delay was presumptively prejudicial.23
In Manix v. State, 1,430 days elapsed between the date of arraignment and trial.24 Of
course, this delay was presumptively prejudicial. Even so, the Court did not shift the burden
to the State to show the lack of actual prejudice under the “prejudice” prong of Barker.25
And, in Sharp v. State, 731 days passed between Sharp’s arrest and trial, which exceeded the
eight-month threshold and established presumptive prejudice.26 Nevertheless, the Court did
not shift the burden from the defendant to the State under the “prejudice” prong of Barker.27
The dissent maintains that, “[I]n Ferguson, this Court followed Moore exactly,” with
regard to the prejudice prong. But a closer reading of Moore v. Arizona indicates otherwise.
In Moore, the United States Supreme Court addressed Arizona’s misreading of Barker, in
which the Court expressly rejected any notion that an affirmative showing of prejudice was
Jenkins, 947 So. 2d at 276.
Id. at 277.
Manix, 895 So. 2d at 172.
Id. at 176.
Sharp, 786 So. 2d at 380 (citing Skaggs v. State, 676 So. 2d 897, 900 (Miss. 1996)).
Id. at 381.
necessary to prove a denial of a constitutional right to a speedy trial.28 Moore was clear that
under the prejudice prong, prejudice must be shown in order for the defendant to win that
prong of Barker.29 The Moore Court emphasized that no single factor is a necessary or
sufficient condition to the finding of a deprivation of the right to a speedy trial.30 So while
an affirmative demonstration of prejudice is not necessary to prove a denial of the
constitutional right to a speedy trial,31 common logic reveals that, if a defendant is to win the
fourth prong of the Barker analysis, he must show that he, or his defense, suffered some type
of prejudice.32 A closer look at the clear prescription outlined in Barker reveals the same.
Under the prejudice prong of Barker, the Court is to consider prejudice to the
defendant, bearing in mind three interests: (1) prevent oppressive pretrial incarceration; (2)
minimize anxiety and concern of the accused; and (3) limit the possibility that the defense
will be impaired.33 Barker does not mention which party bears the burden of persuasion
under this prong. Yet, in its analysis of the prejudice prong, the Court noted that Barker
Moore v. Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 189, 38 L. Ed. 2d 183, 185
Id. at 26-27, 94 S. Ct. at 190. (“Moreover, prejudice to the defendant caused by
delay . . . is not confined to the possible prejudice to his defense . . . . Inordinate delay . . .
may seriously interfere with the defendant’s liberty . . . .”).
Moore, 414 U.S. at 26, 94 S. Ct. at 189.
Polk v. State, 612 So. 2d 381, 387 (Miss. 1992), overruled on other grounds by
Miss. Transp. Comm’n v. Mclemore, 863 So. 2d 31, 39 (Miss. 2003) (“[w]ithout a showing
of prejudice, this prong of the balancing test cannot weigh in favor of the defendant.”).
Jenkins, 947 So. 2d at 277 (citing Mitchell v. State, 792 So. 2d 192, 213 (Miss.
2001)); Barker, 407 U.S. at 531.
made no claim that any of his witnesses had died or otherwise had become unavailable owing
to the delay, and concluded that there was an absence of serious prejudice under the fourth
prong. And since the defendant is clearly in the best position to show prejudice under the
“prejudice” prong, the burden remains with him, as this Court,34 and even our learned
colleague in the dissent,35 has determined previously.
We now move forward and consider the three interests under the fourth prong:
oppressive incarceration, anxiety or concern, and impairment of defense. Although Johnson’s
pretrial incarceration was lengthy, incarceration alone does not constitute prejudice.36
Mississippi caselaw does not recognize the negative emotional, social, and economic impacts
that accompany incarceration as prejudice.37 This Court will not indulge in an assumption,
See Moffett, 49 So. 3d at 1087-1088 (“We find that Moffett failed to meet his
burden of showing actual prejudice. Even if we were to indulge in an assumption of
prejudice, Moffett failed to show intentional device on the part of the State in delaying the
trial.”); Stogner v. State, 627 So. 2d 815, 819 (Miss. 1993) (“Stogner failed to prove that he
was prejudiced.”); see also Jenkins, 947 So. 2d at 276; Manix, 895 So. 2d at 176; Sharp,
786 So. 2d at 381.
Hersick v. State, 904 So. 2d 116, 124 (Miss. 2004) (in this opinion, authored by
Presiding Justice Dickinson, the Court stated “[B]ecause of Hersick’s failure to demonstrate
that he was ‘oppressed,’ that he suffered anxiety and concern (other than concern
regarding sitting in jail), or that his defense was impaired by the delay, this factor favors
the State.”) (emphasis added); Stark, 911 So. 2d at 453 (in an opinion also authored by
Presiding Justice Dickinson, the Court noted that “Stark fails to suggest any evidence,
potential witness, or case theory which escaped his reach because of the delay.”) (emphasis
Jenkins, 947 So. 2d at 278.
Id. at 277 (citing Manix, 895 So. 2d at 177 (citation omitted)) (In Manix, the Court
cited, and thereby adopted with a vote of 8-0, the language found in the Hughey dissent
regarding not recognizing “negative, emotional, social and economic impacts” as
prejudice.).See Hughey, 512 So. 2d at 11.
as does the dissent, that Johnson experienced anxiety and concern from his incarceration.
And while the dissent disagrees with this Court’s decision to weigh this prong against
Johnson, it remains evident that Johnson put forth absolutely no evidence that he has ever
suffered symptoms of anxiety and concern as a result of his incarceration. In order for this
prong to favor any defendant, evidence of legitimate anxiety and concern (medical records,
documentation from the jail, etc.) must exist.38
Moreover, the possibility of impairment of the defense is the most serious
consideration in determining whether the defendant has suffered prejudice as a result of the
delay.39 Generally, this Court will find prejudice where “there was a loss of evidence, the
death of a witness, or the investigation became stale.” 40 None of these occurred here.
Johnson failed to show how the delay prejudiced his defense in any way, nor does the record
reveal any prejudice to Johnson or his defense. In fact, the State pointed out that Johnson
was able to secure an alibi witness because of the delay,41 and the record reveals that a
fundamentally fair trial occurred despite the delay. At best, Johnson’s assertion of prejudice
can be attributed solely to his incarceration, which, without more, is insufficient to warrant
reversal.42 Thus, this prong weighs in favor of the State.
See Magnusen, 646 So. 2d at 1285.
Id. (citing Sharp, 786 So. 2d at 381).
Magnusen, 646 So. 2d at 1285; Manix, 895 So. 2d at 177; Sharp, 786 So. 2d at
Johnson did not call this witness at trial.
Jenkins, 945 So. 2d at 277 (citing Ross v. State, 605 So. 2d 17, 23 (Miss. 1992));
Hersick, 904 So. 2d at 124; Williamson v. State, 512 So. 2d 868, 877 (Miss. 1987).
Under the dissent’s logic, the State must “prove a negative” and provide evidence of
the absence of prejudice to Johnson’s defense. Thus, the State would have to pursue every
possible avenue in search of potential lost witnesses and evidence, and question every
possible person connected with Johnson and the alleged crime. This logic is tantamount to
buying ocean-front property in Arizona; it can’t be done.
Additionally, we address the dissent’s comments regarding this Court’s “undue
emphasis on the prejudice factor,” and its belief that the right to a speedy trial does not serve
to prevent prejudice.43 A close reading of Barker reveals that even the United States
Supreme Court found that the absence of serious prejudice (coupled with the fact that the
defendant did not want a speedy trial) outweighed the other two prongs; the length of delay
(five years), and the reason for delay (the State failed to provide good reason for the delay).44
So this Court’s emphasis on the prejudice prong is not as startling as the dissent claims.
Further, it is well-established that the speedy-trial right is an important safeguard to prevent
prejudice to the defendant and his defense, among other things, so this Court’s belief “that
prejudice is what the constitutional right to a speedy trial was intended to prevent” is not so
Lastly, the dissent makes a bold claim that, “given the history and trend of speedy-trial
motions in Mississippi . . . viewed against the backdrop of our precedent . . . the right to a
Diss. Op. at ¶ 71.
Barker, 407 U.S. at 534, 92 S. Ct. at 2194.
See United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776, 15 L. Ed. 2d 627
speedy trial is simply no longer recognized in Mississippi.” While we greatly disagree with
such an assertion, it should be noted that our learned colleague has had a hand in crafting the
very “trend” at which he now balks.46
In conclusion, this Court has stated “that where the delay is neither intentional nor
egregiously protracted, and there is an absence of actual prejudice to the defense, the balance
is struck in favor of rejecting a speedy trial claim.” 47 After considering all of the relevant
circumstances and factors, we affirm the Court of Appeals and the trial court.
Whether Johnson’s for-cause challenges should have been granted.
In his second assignment of error, Johnson contends that his constitutional right to an
impartial jury was violated because he was forced to use two of his six peremptory
challenges on two jurors who should have been excused for cause by the trial court. The
Court of Appeals found that this issue lacked merit, because Johnson failed to show how he
was prejudiced as a result of the trial court’s rulings, as the jurors ultimately were excluded.
The mere loss of a peremptory challenge is not enough to constitute a violation of the
constitutional right to an impartial jury.48 “So long as the jury that sits is impartial, the fact
that the defendant had to use a peremptory challenge to achieve that result does not mean that
See Moffett, 49 So. 3d 1073; Williams v. State, 53 So. 3d 734 (Miss. 2010); Scott
v. State, 8 So. 3d 855 (Miss. 2008); Jenkins, 947 So. 2d 270; Manix, 895 So. 2d 167; Price
v. State, 898 So. 2d 641 (Miss. 2005); Stark, 911 So. 2d 447; Hersick, 904 So. 2d 116.
Stevens, 808 So. 2d at 918 (citing Duplantis v. State, 708 So. 2d 1327, 1336 (Miss.
1998)); Perry v. State, 637 So. 871, 876 (Miss. 1994).
Mettetal v. State, 615 So. 2d 600, 603 (Miss. 1993).
the defendant was denied his constitutional rights.” 49 And this Court has expressed two
prerequisites that a defendant must show before a claim related to the denial of a challenge
for cause may be made: (1) the defendant must have exhausted all of his peremptory
challenges; and (2) an incompetent juror must be forced by the trial court’s erroneous ruling
to sit on the jury.50
Even though Johnson used all of his peremptory challenges, he fails to meet the
second prerequisite. The two jurors in question did not sit on the jury. And Johnson does
not argue, or much less show, that any of the jurors who sat on the jury were biased or
incompetent. Therefore, we need not address whether the trial court erred in denying
Johnson’s for-cause challenges. This issue is without merit.
Because none of Johnson’s constitutional rights were violated, we agree with the
Court of Appeals and affirm the trial court.
¶27. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF
TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AFFIRMED.
CARLSON, P.J., AND RANDOLPH, J., CONCUR. LAMAR, J., CONCURS
IN RESULT ONLY. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN
OPINION. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY KITCHENS AND CHANDLER, JJ. WALLER C.J., JOINS THIS
OPINION IN PART. KING, J., NOT PARTICIPATING.
Id. (citing Ross v. Oklahoma, 487 U.S. 81, 88, 108 S. Ct. 2273, 2278, 101 L. Ed.
2d 80, 90 (1988)).
Christmas v. State, 10 So. 3d 413, 423 (Miss. 2009) (citing Mettetal, 615 So. 2d at
WALLER, CHIEF JUSTICE, DISSENTING:
Because I believe that Johnson’s constitutional right to a speedy trial was violated, I
respectfully dissent. I join Presiding Justice Dickinson’s dissent in part only to the extent
that he finds that a speedy-trial violation occurred under the facts of this specific case.
DICKINSON, PRESIDING JUSTICE, DISSENTING:
It is no secret that, for the past twenty years, the Sixth-Amendment right to a speedy
trial has been under attack and on life support. Although this Court’s previous decisions
have suggested that—given the right set of facts—a speedy trial claim could possibly be won,
today’s final, fatal blow mercifully puts the criminal-defense bar out of its misery. Whereas
previous decisions have been less than clear, today’s plurality opinion is as subtle as a stick
of dynamite—the Sixth-Amendment right to a speedy trial in Mississippi is dead.
In previous cases, this Court at least paid lip service to a few speedy-trial maxims,
such as “an eight-month delay is presumptively prejudicial” and “no single Barker factor
controls” (both discussed later). But today, the plurality—purporting to overrule Smith v.
State and its progeny, and ignoring Flora v. State, Ferguson v. State, and their
progeny—makes crystal clear this Court’s position on the right to a speedy trial: the lifesupport plug has been pulled, and the right to a speedy trial exists no more.51
Because I believe the Sixth-Amendment right to a speedy trial is as important to us
today as it was when it was proposed by our Founding Fathers in 1789, and ratified by the
people in 1791, I respectfully dissent.
Actually, since today’s case is decided by a plurality rather than a majority, there
is some small chance that a spark of life still burns. We’ll see.
BACKGROUND FACTS AND PROCEEDINGS
After he was indicted, Virgil Johnson quickly moved—pro se, in writing—for a
speedy trial. When he didn’t get one, he moved—pro se, in writing—for dismissal. He
never requested a continuance.
At the beginning of the hearing on Johnson’s speedy-trial motion—despite the 680-
day delay—the trial judge observed that Johnson’s trial seemed “pretty speedy.” The State,
in addressing why Johnson’s trial had been delayed for 680 days, offered only a casual
comment that “it was just due to a congested trial docket.” How crowded, we do not know,
as the record includes no evidence to support the State’s claim.
Then, in the following exchange with Johnson’s counsel, Donald Boykin, the trial
judge addressed prejudice:
What’s the prejudice? The record speaks for itself as I
What’s the prejudice to the defendant?
I’m prepared to put him on the witness stand, Your
I’m asking you. We’re not taking any testimony at this
time. You’re going to make the argument to the Court
what the prejudice is, and then we’re going to pick a jury
and try the defendant.52
This statement reminds me of a judge, now deceased, who was fond of saying,
“Marshal, bring in the criminals and let’s give ‘em a fair trial!”
The trial court denied Johnson’s motion, and the case proceeded to trial. Johnson was
convicted. He filed a timely appeal, arguing (among other things) that he was denied his
constitutional right to a speedy trial.
Since 1992, the Sixth-Amendment right to a speedy trial has been on life
support in Mississippi.
In 1972, the United States Supreme Court handed down Barker v. Wingo,53 which
established four factors (the Barker factors, discussed later) state courts must consider when
analyzing Sixth-Amendment speedy-trial issues. In the forty years since Barker, this Court
has applied the Barker factors to speedy-trial issues in ninety-eight cases—forty before 1992,
and fifty-eight since.
Of those first forty cases, all decided prior to 1992, this Court found speedy-trial
violations approximately one-fourth of the time. But in the fifty-eight cases decided since
1992, this Court has not found a single violation. Fifty-eight cases in a row over the past
nineteen years—and all decided in favor of the State.54
This appalling statistic cannot be explained by a more efficient judiciary that provides
quicker trials; indeed, a review of the cases reveals that delays have been getting longer.55
Nor can it be explained by changes in the federal law (Barker remains unchanged, and
Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
The last case this Court reversed on Sixth Amendment speedy-trial grounds was
Jenkins v. State, 607 So. 2d 1137 (Miss. 1992).
Between 1974 and 1992, the average delay in opinions that included the time of
delay was 539 days. Since 1992, the average delay has been 609 days. See Appendix A.
controlling). Sadly, it seems this Court simply no longer is willing to enforce an accused’s
constitutional right to a speedy trial.
The plurality—pointing out that, as a member of the post-1992 Court, I personally
have “had a hand in crafting the very trend” I now criticize 56 —raises an interesting point.
Since beginning my term on this Court in 2004, I have participated in twelve speedy-trial
cases.57 I concurred “in result only” in two of them,58 dissented in three,59 and either wrote
or joined the majority in the rest. So of the speedy-trial cases in which I have participated,
I would have reversed one-quarter—a percentage almost identical to this Court’s pre-1993
reversal rate of constitutional speedy-trial cases.
We are required to apply the Barker factors, all four of which weigh in
favor of Johnson.
The U.S. Constitution’s Supremacy Clause requires all state courts to recognize
federal law—including the provisions of the United State Constitution—as “the supreme law
Plur. Op. at ¶ 21.
McBride v. State, 61 So. 3d 138, (Miss. 2011); Thomas v. State, 48 So. 3d 460
(Miss. 2010); Moffett v. State, 49 So. 3d 1073 (Miss. 2010); Scott v. State, 8 So. 3d 855
(Miss. 2008); Murray v. State, 967 So. 2d 1222 (Miss. 2007); Jenkins v. State, 947 So. 2d
270 (Miss. 2006); Flora v. State, 925 So. 2d 797 (Miss. 2006); Stark v. State, 911 So. 2d
447 (Miss. 2005); Price v. State, 898 So. 2d 641 (Miss. 2005); Manix v. State, 895 So. 2d
167 (Miss. 2005); Young v. State, 891 So. 2d 813 (Miss. 2005); Hersick v. State, 904 So.
2d 116 (Miss. 2004).
Scott, 8 So. 3d 855; Jenkins, 947 So. 2d 270.
McBride, 61 So. 3d 138; Thomas, 48 So. 3d 460; Flora, 925 So. 2d 797.
of the land.” 60 One such constitutional provision—the Sixth Amendment 61 —guarantees the
accused in a criminal case a speedy and public trial.62
A. The Barker factors
Forty years ago, the United States Supreme Court decided Barker v. Wingo 63 and set
forth four factors to be used by state and federal courts in analyzing Sixth-Amendment
speedy-trial issues. The four Barker factors are: “Length of delay, the reason for the delay,
the defendant's assertion of his right, and prejudice to the defendant.” 64 And to the extent the
United States Supreme Court has instructed how these factors must be applied, this Court is
not free to improvise. But in balancing the Barker factors, this Court has said:
The weight to be given each factor necessarily turns on the quality of evidence
available on each and, in the absence of evidence, identification of the party
with the risk of non-persuasion. In the end, no one factor is dispositive. The
totality of the circumstances must be considered.65
Most would agree that our precedent should provide stability, consistency, and
predictability to the law. But this Court’s method of weighing and balancing the Barker
U.S. Const. art. VI, cl. 2.
U.S. Const. amend. VI.
To appreciate the importance of the Sixth Amendment, one need only consider
Edmond Dantès’s consignment to the Château d’If in “The Count of Monte Cristo.”
Barker, 407 U.S. at 530.
Price, 898 So. 2d at 648 (citing Beavers v. State, 498 So. 2d 788, 790 (Miss.
factors has so significantly shifted since Barker was decided in 1972, that recent opinions
bear no resemblance to those of a few decades ago.
1. Length of Delay
The first Barker factor—length of delay—generally concerns the length of time that
passes from an accused’s arrest until trial.66 This Court, addressing a 370-day delay in Smith
v. State, held:
What length of time must elapse before prejudice will be presumed? While
there are some exceptions to the rule, “it may generally be said that ‘any delay
of eight months or longer is ‘presumptively prejudicial.’” 67
Smith and its twenty-year progeny clearly hold that “prejudice will be presumed”
when a trial is delayed for “eight months or longer,” and that an eight-month delay requires
analysis of the remaining three Barker factors.68 Also, an eight-month delay causes this first
factor—length of delay—to weigh in favor of the defendant.69
United States v. Hill, 622 F.2d 900, 909 (5th Cir. 1980) (“The Sixth Amendment
clock begins to tick upon indictment when no prior arrest on the alleged offense is
involved.”) (citing Dillingham v. United States, 423 U.S. 64, 96 S. Ct. 303, 46 L. Ed. 2d 205
(1975) (per curiam); United States v. Marion, 404 U.S. 307, 320–21 (1971)).
Smith v. State, 550 So. 2d 406, 408 (Miss. 1989) (emphasis added) (citing 2 W.
LaFave & J. Israel, Criminal Procedure § 18.2 (1984) (quoting Gregory P.N. Joseph, Speedy
Trial Rights in Application, 48 Fordham L. Rev. 611, 623 n. 71 (1980))).
See, e.g., Thomas, 48 So. 3d at 475; Murray, 967 So. 2d at 1230; Jenkins 947
So. 2d at 276; Manix, 895 So. 2d at 176; Young, 891 So. 2d at 817.
See, e.g., Price, 898 So. 2d at 648; Manix, 895 So. 2d at 176; Stevens v. State, 808
So. 2d 908, 916 (Miss. 2002); Herring v. State, 691 So. 2d 948, 955 (Miss. 1997); Moffett,
49 So. 3d at 1086; Stark, 911 So. 2d at 450; Hersick, 904 So. 2d at 121; Brengettcy v.
State, 794 So. 2d 987, 992 (Miss. 2001).
So if (as our precedent indicates) we really do presume prejudice at eight months (240
days), we certainly must presume it at 680 days, the length of delay in this case.
Interestingly, the delay in this case is longer than the delay in almost all of the post-Barker
cases reversed by this Court on constitutional speedy-trial grounds.70
On the “presumptively prejudicial” point, the plurality takes an interesting position
addressed in the “Prejudice” discussion below. But for purposes of analyzing the first
Barker factor, the plurality concedes (1) that the 680-day delay is, indeed, presumptively
prejudicial, (2) this factor weighs in Johnson’s favor, and (3) that we must analyze the
remaining three Barker factors.
2. Reason for the delay
The plurality correctly recognizes that where (as here) the length of delay is
presumptively prejudicial, the burden shifts to the State to provide a satisfactory reason for
the delay.71 But then, the plurality’s analysis of this factor is flawed by its incorrect
understanding of what happened at the hearing on Johnson’s motion.
A. Crowded docket
The plurality correctly points out that the trial judge said there were several “older
cases” that were set before Johnson’s, which “may have” caused his case to be put off. This
statement has several problems.
State v. Ferguson, 576 So. 2d 1252 (Miss. 1991) (288 days); Flores v. State, 574
So. 2d 1314 (Miss. 1990) (610 days); Smith v. State, 550 So. 2d 406 (Miss. 1989) (370
days); Beavers v. State, 498 So. 2d 788 (Miss. 1986) (423 days); Bailey, 463 So. 2d 1059
(298 days); Burgess v. State, 473 So. 2d 432 (Miss. 1985) (16 months); Perry v. State, 419
So. 2d 194 (Miss. 1982) (566 days).
Plur. Op. at ¶ 8 (citing Jenkins, 947 So. 2d at 276 –77).
First, “may have caused” hardly rises to the level of evidence. Second, in referring
to “older cases,” the trial judge was referring to Johnson’s date of arraignment (not relevant
in a Barker analysis), rather than his date of arrest.
Finally, we pretty clearly said in Flora v. State that “[t]his Court should not be
expected to simply accept at face value the claims of crowded dockets, backlogged
laboratory testing, and other similar logistical problems, which undeniably exist.” 72 So the
plurality says we now accept at face value the claims of crowded dockets. This holding
ignores our precedent in Flora v. State.
B. Trial dates
The plurality mistakenly believes the State produced trial dates from the computer
system used throughout Hinds County, which showed that Johnson’s case had been set for
trial three months after he was arraigned. The record before us does not support this claim.
Here’s what really happened:
At the pretrial hearing on Johnson’s motion to dismiss, the prosecutor stated that
“[t]he first trial setting was July 16th of ‘07 from the record that I’ve seen.” When Johnson’s
attorney challenged the State to produce proof of that date from the docket or otherwise, the
prosecutor could not. And the appellate record, which includes the trial court’s docket sheet,
indicates that Johnson had no trial setting earlier than March 11, 2008. No other proof of a
trial date—or of an overcrowded docket—was produced by anyone.
Flora, 925 So. 2d at 817 (weighing the “reason-for-delay” factor in favor of
Even if the delay was caused by an overcrowded docket, this
factor—according to Barker—weighs in favor of Johnson.
Because the State produced no evidence to explain the delay, this second Barker
factor—reason for the delay—should weigh in favor of Johnson. The Barker Court stated:
A deliberate attempt to delay the trial in order to hamper the defense should be
weighted heavily against the government. A more neutral reason such as
negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant.
Finally, a valid reason, such as a missing witness, should serve to justify
First, it is noteworthy that the United States Supreme Court does not include
“overcrowded courts” in the “valid reason” category. But more importantly, Barker holds
that an overcrowded docket, while “more neutral” than “deliberate delay,” still must be
weighed against the State because “the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant.” 74
The plurality awards this second Barker factor “slightly” to Johnson. Even though
the plurality’s appreciation of the facts and law on this point are quite different from mine,
I do not quarrel with this point. Johnson has, so far, won two out of two factors.
3. Assertion of the right
The plurality concedes that Johnson wins this factor.
According to Barker, a
“defendant’s assertion of his speedy trial right . . . is entitled to strong evidentiary weight in
Barker, 407 U.S. at 531 (emphasis added).
determining whether the defendant is being deprived of the right.” 75 The term “assertion of
the right” means to make a demand for a speedy trial. As we have said more than once, a
defendant “gains far more points under this prong of the Barker test where he has demanded
a speedy trial.” 76 Johnson did.
Less than two months after he was indicted, Johnson filed a pro se “motion for a fast
and speedy trial.” After filing a pro se motion to dismiss for violation of his speedy-trial
right, Johnson filed what he called a “Motion to Compel,” in which he stated:
Petitioner has several motions pending in court and seeks to swiftly bring them
before a magistrate for review to wit: Motion for Fast and Speedy Trial . . .
Motion to Dismiss For Failure to Provide a Fast and Speedy Trial . . . .
Johnson’s motions were heard on the morning of trial. Nowhere in the transcript of
proceedings before the trial court—or in its brief to this Court—does the State even hint that
it thinks Johnson should have (or could have)77 set his motion for hearing earlier.
To its credit, the plurality does not contest that, by winning this factor, Johnson is
entitled to the “strong evidentiary weight” referred to in Barker, and the extra Barker
Barker, 407 U.S. at 531–32.
Ferguson, 576 So. 2d at 1255 ; Jaco v. State, 574 So. 2d 625, 632 (Miss. 1990)
It appears Johnson could not have brought his up motion for hearing, even if he
wanted to. According to the trial court’s local rule: “Hearings are not automatically granted.
. . . Should the court require a motion hearing, the party filing the motion shall be notified
by the court.” Judge Tomie Green, Procedures for Pretrial Matters Rule 1 (Rev. Sept.
“points” referred to in Jaco and Ferguson. So this factor weighs “strongly” 78 in Johnson’s
favor, and he has now won all three of the first three factors.
This Court’s inconsistent record on three-to-one cases is disturbing.
Before moving to the fourth and final Barker factor, I pause to make a brief
observation about where we are at this point. So far, the first three Barker factors clearly
weigh in favor of Johnson. Giving the plurality the benefit of the doubt, here is how the
factors stack up:
Length of delay. Because the length of delay in this case is almost triple the eight-
month threshold delay that triggers the presumption of prejudice, this factor surely weighs
heavily in Johnson’s favor. Reason for the Delay. This factor, according to the plurality,
weighs slightly in Johnson’s favor. Assertion of the right. This factor weighs heavily in
And as set forth below, I believe the fourth factor—prejudice—also weighs in his
favor. But even assuming it doesn’t, Johnson wins three factors (two heavily) and loses one.
This Court has been confronted with this same three-to-one scenario eighteen times in the
forty-year history of the Barker factors—five times through 1992, and thirteen times since.
An analysis of those eighteen cases is both instructive and disturbing.
This Court found speedy-trial violations and reversed all five of the three-to-one cases
decided through 1992.79 So during this Court’s first twenty years of Barker analysis, it
Barker, 407 U.S. at 531–31.
Flores, 574 So. 2d 1314; Smith, 550 So. 2d 406; Vickery v. State, 535 So. 2d
1371 (Miss. 1988); Beavers, 498 So. 2d 788; Burgess, 473 So. 2d 432.
backed up its perennial claim that no single Barker factor is controlling.80 But since 1992,
this Court has reversed—none. The last thirteen times in a row this Court has reviewed cases
in which three of the Barker factors weighed in favor of the defendant, it found no speedy
The only conclusion one can fairly draw from reviewing the three-to-one cases
decided since 1992 is that, in reality, defendants cannot win speedy-trial claims before this
Court unless they win all four factors. And given this Court’s history, even if a defendant
could do all that, there’s still no reason to believe the defendant would actually prevail.
In analyzing the prejudice factor, the plurality’s main concern seems to be who had
the burden of proof. Yet the plurality seems to be untroubled by the fact that, when the
defendant, Johnson, attempted to take the witness stand and testify concerning prejudice, the
trial judge prohibited him from doing so.
The plurality’s discussion of this factor is perhaps more disturbing than any of the
other three. The plurality concedes, as it must, that the United States Supreme Court has
Thomas, 48 So. 3d at 475 (citing Poole v. State, 826 So. 2d 1222, 1228–1229
(Miss. 2002)); Moffett, 49 So. 3d at 1086; Jenkins, 947 So. 2d at 276; Price v. State, 898
So. 2d at 648 (citing Beavers, 498 So. 2d at 790); Ginn v. State, 860 So. 2d 675, 683 (Miss.
Flora, 925 So. 2d 797; Manix, 895 So. 2d 167; Stevens, 808 So. 2d 908; Arthur
v. State, 735 So. 2d 213 (Miss. 1999); Duplantis v. State, 708 So. 2d 1327 (Miss. 1998);
Hull v. State, 687 So. 2d 708 (Miss. 1996); Skaggs v. State, 676 So. 2d 897 (Miss. 1996);
Taylor v. State, 672 So. 2d 1246 (Miss. 1996); McGhee v. State, 657 So. 2d 799 (Miss.
1995); Giles v. State, 650 So. 2d 846 (Miss. 1995); Rhymes v. State, 638 So. 2d 1270
(Miss. 1994); Hurns v. State, 616 So. 2d 313 (Miss. 1993); Ross v. State, 605 So. 2d 17
stated, more than once, that a defendant is not required to show prejudice affirmatively to win
a Barker analysis.82 Then the plurality makes a statement that bears repeating:
So while an affirmative demonstration of prejudice is not necessary to prove
a denial of the constitutional right to a speedy trial,83 common logic reveals
that, if a defendant is to win under the fourth prong of the Barker analysis, he
must show that he, or his defense, suffered some type of prejudice.84
Well, if “an affirmative demonstration of prejudice is not necessary to prove a denial
of the constitutional right to a speedy trial,” how in the world can one explain the outcome
of the case before us today?
Conceding (solely for the sake of argument) that there was no “affirmative
demonstration of prejudice,” even the plurality admits that Johnson won everything
else—and two of the factors, he won heavily. So affirmatively demonstrating prejudice was
certainly necessary for Johnson “to prove a denial of the constitutional right to a speedy
Prejudice is the only factor the plurality finds Johnson didn’t win, so it is beyond
argument that, in this case, it was indeed necessary for him affirmatively to prove prejudice.
Put differently, under the law announced today, how on earth could Johnson or anyone else
prevail on a speedy-trial issue without affirmatively demonstrating prejudice? The plurality’s
thinking on this point is far above my head and completely escapes me.
Moore, 414 U.S. at 26 (emphasis added).
See Moore v. Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 189, 38 L. Ed. 2d 183, 185
Plur. Op. at ¶ 15.
As already stated, this Court has said many times that no single Barker factor should
control. But in previous cases, this Court has come perilously close to admitting that a
Mississippi defendant’s speedy-trial claim is dead, unless he shows actual prejudice.85
Today, all doubt has been removed. Regardless of the length of delay, or the outcome of any
other factor, if you don’t show prejudice, you lose.
The plurality’s undue emphasis on the prejudice factor may be due, in part, to its
mistaken belief that preventing prejudice is what the constitutional right to a speedy trial was
primarily intended to accomplish. But the United States Supreme Court cleared that up
nearly thirty years ago:
The Sixth Amendment right to a speedy trial is thus not primarily intended to
prevent prejudice to the defense caused by passage of time; that interest is
protected primarily by the Due Process Clause and by statutes of limitations.
The speedy trial guarantee is designed to minimize the possibility of lengthy
incarceration prior to trial, to reduce the lesser, but nevertheless substantial,
impairment of liberty imposed on an accused while released on bail, and to
shorten the disruption of life caused by arrest and the presence of unresolved
It is not possible to fairly conclude from the plurality opinion anything other than the
incorrect notion that the right to a speedy trial is important only to prevent prejudice.
A. Prejudice presumed
The plurality makes far too much of the presumptively- prejudicial issue. All it means
is that, where the delay is eight months or more and nothing else gets in the record, prejudice
See, e.g., Arthur, 735 So. 2d at 216 (finding no violation despite the defendant
winning three of the four Barker factors: “The final Barker factor is the resulting prejudice
to Arthur. This is where Arthur loses his argument.”) (emphasis added).
United States v. MacDonald, 456 U.S. 1, 8 (1982) (emphasis added).
is presumed. And where the defendant offers no additional evidence of prejudice, the State’s
burden of overcoming the presumption is light.
The plurality is due credit for correctly observing that this Court has employed an
“inconsistent analysis of this prong” in past cases.87 Indeed, this Court specifically has said
that “identification of the party with the risk of nonpersuasion” is necessary in determining
how to weigh each factor.88 This is important because the State bears the burden of
production (or the risk of non-persuasion) on the prejudice factor where the length of delay
is presumptively prejudicial.89
The plurality misreads Ferguson v. State and can’t distinguish it.
In Ferguson v. State, this Court explicitly held: “[T]he burden of production and
persuasion are critical. Where the delay has been presumptively prejudicial, the burden [on
the prejudice factor] falls upon the prosecution.” 90 It can’t be more clear than that.
But the plurality—unable to distinguish Ferguson—ignores it. It is possible that the
plurality’s reticence to follow Ferguson is explained by its misreading of the case, in which
we relied on Prince v. Alabama 91 —a Fifth-Circuit case; and Moore v. Arizona 92 —a United
States Supreme Court case the plurality cannot overrule.
Plur. Op. at ¶ 11.
Price, 898 So. 2d at 648 (citing Beavers, 498 So. 2d at 790).
Plur. Op. at ¶ 11.
Ferguson v. State, 576 So. 2d at 1255 (emphasis added).
Prince v. Alabama, 507 F.2d 693 (5th Cir. 1975).
Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973).
The plurality first suggests that we were wrong to rely on Prince for the proposition
that a presumptively prejudicial delay shifts the burden to the State on the prejudice factor,
subtly twisting Prince’s language to reach that conclusion. In Prince, the Fifth Circuit said,
under our prior holding in Hoskins[ v. Wainwright93 ], where the defendant has
established a prima facie case of denial of the speedy trial right, the burden is
upon the State to show that the defendant has not been prejudiced by the
The case did not hold—as the plurality reads it—that the defendant must first establish
a prima facie case of prejudice, but rather a prima facie case “of denial of the speedy trial
right.” 95 While the plurality initially acknowledges that the burden shifts to the State on a
prima facie showing of violation of the speedy-trial right, a few sentences later, the plurality
morphs this critical language to say that “Johnson does not come close to showing a prima
facie case of actual prejudice . . . .” 96
Again, a proper reading of Prince along with Hoskins I—the pre-Barker case on
which Prince relied—clearly reveals that a defendant must make a prima face case of
violation, not of prejudice, to shift the burden to the State
by showing that his prosecution was delayed beyond the point at which a
probability of prejudice arose, that he was not responsible for the delay, and
that the State ought reasonably to have avoided the delay. In these
Hoskins v. Wainwright, 440 F.2d 69, 72 (5th Cir. 1971) (hereinafter “Hoskins I”).
Prince, 507 F.2d at 707 (emphasis added).
Plur. Op. at ¶ 11 (emphasis added).
circumstances the State should be given the burden of proving that the delay
was necessary and that no prejudice in fact occurred.97
That was the case in Ferguson, and that is the case here.
I also note with bemusement that, in its attempt to use Prince to prove that Ferguson
was wrongly decided, the plurality skips right over Prince’s observation that
we are not compelled to consider the question of prejudice by reason of our
holding in Hoskins III  . . . , that prejudice is immaterial where
consideration of the other three factors—length of delay, defendant’s assertion
of his right, and reasons for the delay—coalesce in the defendant’s
favor . . . .99
This holding could not be more clear: When the defendant wins the first three Barker factors,
prejudice is immaterial, and the court need not even look at it. And this holding is not just
a peculiarity of the Fifth Circuit. As Hoskins III noted, this conclusion is mandated by
We regard none of the four factors identified above as 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. In sum, these factors have no talismanic
qualities; courts must still engage in a difficult and sensitive
Hoskins I, 440 F.2d at 72 (emphasis added) (citing Dickey v. Florida, 398 U.S. 30,
56, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970)).
Hoskins v. Wainwright, 485 F.2d 1186, 1192 (5th Cir. 1973) (hereinafter Hoskins
III) (emphasis added).
Prince, 507 F.2d at 706–07 (emphasis added).
Barker, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118.
If this means what it says, there must be some point of coalescence of the other
three factors in a movant’s favor, at which prejudice—either actual or
presumed—becomes totally irrelevant. And so we hold.101
This simply makes sense. If “none of the four factors [is] a necessary . . . condition,”
this has to mean that a defendant cannot lose the test solely by losing one factor (as Johnson
does today). The United States Supreme Court has said it, the Fifth Circuit has said it, and
this Court said it in Ferguson.
In Moore, the United States Supreme Court reviewed a case in which the Supreme
Court of Arizona did 102 exactly what the plurality does today. The defendant had suffered
a prolonged delay despite his attempt to secure a speedy trial, and the only reason proffered
by the State was overcrowded dockets.103
The Arizona Supreme Court weighed the first three Barker factors in favor of the
defendant, but nevertheless held that his speedy-trial right was not violated because he had
failed to show actual prejudice caused by the delay.104 On appeal, the United States Supreme
Court denounced that conclusion:
The state court was in fundamental error in its reading of Barker v. Wingo and
in the standard applied in judging petitioner’s speedy trial claim. Barker v.
Wingo expressly rejected the notion that an affirmative demonstration of
prejudice was necessary to prove a denial of the constitutional right to a
speedy trial . . . .105
Hoskins III, 485 F.2d at 1192 (emphasis added).
Arizona v. Moore, 506 P.2d 242 (Ariz. 1973).
Id. at 245.
Moore, 414 U.S. at 26 (emphasis added).
In Ferguson, this Court followed Moore exactly. We held that, because an eight-
month delay was presumptively prejudicial, and because the defendant may not be required
to affirmatively demonstrate prejudice, it necessarily falls to the State to come forward with
some evidence indicating that the delay in fact resulted in no prejudice to the accused.106
And since Ferguson, we have reiterated that same point—albeit inconsistently—in numerous
other cases.107 The plurality now rejects the holdings in Hoskins III, Ferguson, Barker, and
The plurality misreads Smith v. State, can’t distinguish it, and so
purports to overrule it.
Ferguson, 576 So. 2d at 1255.
See, e.g., Ginn, 860 So. 2d at 684 (quoting Ferguson, 576 So. 2d at 1255) (“We
have held: ‘[W]hen the length of delay is presumptively prejudicial, the burden of persuasion
is on the state to show that the delay did not prejudice the defendant.’”); Stevens v. State,
808 So. 2d at 917 (“Stevens does not bear the burden of proving actual prejudice in this case.
On the contrary, when the length of delay is presumptively prejudicial, the burden of
persuasion is on the State to show that the delay did not prejudice the defendant.”); Birkley
v. State, 750 So. 2d 1245, 1252 (Miss. 1999) (quoting Ferguson, 576 So. 2d at 1255) (“In
analyzing this final factor the Court must also take note of the burden of production and
persuasion. In Ferguson, this Court stated, ‘Where the delay has been presumptively
prejudicial, the burden falls upon the prosecution.’”); Duplantis, 708 So. 2d at 1335
(“Duplantis does not bear the burden of proving actual prejudice in this case. On the
contrary, when the length of delay is presumptively prejudicial, the burden of persuasion is
on the state to show that the delay did not prejudice the defendant.”); Beckwith v. State, 707
So. 2d 547, 567 (Miss. 1997) (“Beckwith need not prove actual prejudice to his defense in
this case. On the contrary, when the length of delay is presumptively prejudicial, the burden
of persuasion is on the state to show that the delay did not prejudice the defendant.”); Jasso
v. State, 655 So. 2d 30, 35 (Miss. 1995) (“This Court has stated that the State actually has
to show lack of prejudice in order to prevail in this factor.”); Ross, 605 So. 2d at 23 (“The
analysis must, then, proceed to the other three Barker factors, in which the state bears the
burden of proving no prejudice to the defendant.”).
After conceding that the delay in this case was presumptively prejudicial, the plurality
attempts to redefine the term. (Stay tuned in case the meaning of “presumed innocent” is
challenged in some future case.) The phrase “presumptively prejudicial” is not complicated.
Black’s Law Dictionary defines a “presumption” as:
A legal inference or assumption that a fact exists, based on the known or
proven existence of some other fact or group of facts. . . . A presumption shifts
the burden of production or persuasion to the opposing party, who can then
attempt to overcome the presumption.108
If the phrase “presumptively prejudicial” means anything, it must mean that, in the
absence of contrary evidence produced by the State, the court must conclude that the
defendant was prejudiced by the delay.
But the plurality rejects this straightforward meaning, opting instead to read “presume
prejudice” merely to mean “look at the other Barker factors.” For support, the plurality cites
a footnote in Doggett v. United States,109 in which the United States Supreme Court
cited—with approval—a law-review article that discussed the meaning of presumptive
prejudice, explicitly acknowledging that presumptive prejudice does indeed shift the burden
to the State.110
The State produced nothing to rebut the three prejudice interests
identified in Barker.
Black’s Law Dictionary 1304 (9th ed. 2009) (emphasis added).
Doggett v. United States, 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 2691, 120 L. Ed.
2d 520 (1992).
H. Richard Uviller, Barker v. Wingo: Speedy Trial Gets a Fast Shuffle, 72 Colum..
L. Rev. 1376, 1394–95 (1972) (“[T]he shift of burden actually permits the presumption of
prejudice to prevail on the issue. Since that presumption is well-founded, however, justice
In Barker, the United States Supreme Court identified and discussed three prejudice
interests: (1) oppressive pretrial incarceration, (2) anxiety and concern of the accused, and
(3) impairment of the defendant’s defense.111 And since the 680-day delay in this case was
presumptively prejudicial, it should fall to the State to rebut the presumption, or the
“prejudice” factor must be weighed in favor of Johnson.
Oppressive Pretrial Incarceration
Johnson was in jail the entire time between his arrest and trial. He made repeated
requests for bail reduction, but they were ignored (not denied, ignored). The State offered
nothing in rebuttal.
Anxiety and Concern
We have discussed previously the societal disadvantages of lengthy pretrial
incarceration, but obviously the disadvantages for the accused who cannot
obtain his release are even more serious. 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. . . . Imposing those consequences
on anyone who has not yet been convicted is serious.112
The plurality refuses to award Johnson this prong because he presented no evidence
of “anxiety and concern,” never mind that he was prevented from working in order to provide
for his child and sick mother,113 and never mind that the circuit judge refused to allow him
to testify at the speedy-trial hearing. I find inability to fulfill one’s role as the sole caretaker
of a cancer-ridden mother and a minor child to be more than sufficient to demonstrate
Barker, 407 U.S. at 532.
Id. at 532-33.
Plur. Op. at ¶ 17.
legitimate anxiety and concern.114 I find it amazing that the circuit judge refused to allow
Johnson to testify. And in any case, the State offered nothing in rebuttal.
Impairment of the Defendant’s Defense
Of the three prongs of the prejudice factor, this one is the “most serious.” 115 Aside
from referencing a last-minute witness who did not even testify at trial, the State offered
nothing to demonstrate that Johnson’s defense was not impaired.
But even assuming the State did not have the burden of production, a defendant is not
required to establish actual impairment to succeed on his constitutional speedy-trial claim.116
An accused who prevails on three of the four Barker factors—and who also prevails on two
of the three prongs of the fourth Barker factor—should not lose the entire Barker balancing
test solely on this single prong of one of the factors.
After the circuit judge refused to allow Johnson to testify, this information was
provided to the circuit judge by Johnson’s lawyer.
Barker, 407 U.S. at 532.
Flores, 574 So. 2d at 1323 (citing Trotter v. State, 554 So. 2d 313, 318 (Miss.
1989)) (“it is clear that an affirmative showing of prejudice is not necessary in order to prove
a denial of the constitutional right to a speedy trial”).
Although one could fairly debate the weight due each of the first three Barker
factors, 117 there is no doubt that all three weigh in favor of Johnson. In a case almost on all
fours with this one, we held:
While this record contains little evidence of prejudice, the reason for giving
weight to the other factors is the obvious difficulty in establishing through
objective hard evidence the fact of prejudice even when it does exist.
Moreover, there is nothing in the constitutional provisions at issue qualifying
the right to a speedy trial so that its assertion depends upon a showing of
prejudice. Where, as here, the accused effectively demanded trial and where
there was a substantial unjustified delay in bringing him to trial, the fact that
the Defendant’s prejudice showing is weak avails the prosecution little.118
So even if one agrees that the prejudice factor favors the State, this case still should
Under both Barker and Bailey, three factors weigh against the state: (1)
assertion of the right by Burgess, (2) the reason for the delay by the state, and
(3) the length of the delay. These outweigh item (4) prejudice, if the Barker
and Bailey holdings that no one factor is dispositive are to have any meaning
If this were not so, the state could sit back and deliberately hold criminal
charges against a citizen indefinitely so long as the individual could not point
out any specific prejudice.120
See, e.g., Flores, 574 So. 2d at 1323 (“The only Barker factor that does not favor
VanEtten is that he did not aggressively assert his right to a speedy trial. All the other
Barker factors weigh in his favor. Therefore, VanEtten was denied his constitutional right
to a speedy trial.”); Smith v. State, 550 So. 2d at 409 (“The only Barker factor which weighs
against Smith is that he did not assert his right to a speedy trial until five days before trial
began. All the other Barker factors weigh in his favor. Based upon a balancing of the four
Barker factors, we hold that Smith was denied his constitutional right to a speedy trial.”).
Beavers, 498 So. 2d at 792 (emphasis added) (reversing and rendering).
Bailey, 463 So. 2d 1059.
Burgess v. State, 473 So. 2d at 434 (emphasis added).
Constitutional rights are guaranteed to all criminal defendants, regardless of the
ultimate disposition of their cases.121 Today, this Court acquiesces in the violation of Virgil
Johnson’s Sixth-Amendment right to a speedy trial. Accordingly, I dissent—not because of
any personal concern for Johnson himself, but because of my deep concern for the twentyyear erosion of the constitutional right itself.
KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION. WALLER, C.J.,
JOINS THIS OPINION IN PART.
The following graph represents every post-Barker case from this Court, in which the
length of delay is discernible in the opinion. For each case, the length of delay (in days) is
represented by a dot. The dashed line was calculated using the “trend line” function in
Microsoft Excel, and indicates that the delays generally are getting longer and longer.
Id. (“Even the indisputably guilty defendant has the constitutional right to a speedy