STATE OF NEW MEXICO, Plaintiff-Respondent, v. BRYAN SCHUSTER, Defendant-Petitioner.
NO. S-1-SC-40419
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
July 8, 2026
Melissa A. Kennelly, District Judge
Opinion Number:
ORIGINAL PROCEEDING ON CERTIORARI
Bennett J. Baur, Chief Public Defender
Kimberly Chavez Cook, Appellate Defender
MJ Edge, Assistant Appellate Defender
Santa Fe, NM
for Petitioner
Raúl Torrez, Attorney General
Santa Fe, NM
Michael J. Thomas, Assistant Solicitor General
Albuquerque, NM
for Respondent
BACON, Justice.
{1} Defendant Bryan Schuster challenges the Court of Appeals’ reversal of the district court’s grant of his motion to dismiss for violation of his right to a speedy trial. See
{2} Speedy trial challenges in New Mexico are governed by “the four-factor test set forth in Barker [v. Wingo, 407 U.S. 514, 530 (1972)], balancing the length of delay, the reason[s] for delay, the defendant’s assertion of the right to a speedy trial, and the prejudice to the defendant.” State v. Ochoa, 2017-NMSC-031, ¶ 4, 406 P.3d 505. Defendant challenges three of the Court of Appeals’ determinations under Barker as improper in differing from the district court’s correct determinations.
{3} Under our weighing of the Barker factors, we hold the first three factors weigh heavily against the State. Accordingly, we reverse the Court of Appeals without reaching analysis of the prejudice factor. In addition, to guide lower courts, we explain in detail our departure from the Court of Appeals’ analysis regarding the reasons-for-delay and assertion-of-the-right factors.
I. BACKGROUND
{4} Defendant was arrested on March 8, 2019, and released on his own recognizance the same day under conditions of release set by the magistrate court and subsequently largely adopted by the district court. On March 15, 2022, more than three years later, the district court conducted a hearing on Defendant’s Motion to Dismiss for Violation of Speedy Trial Rights, which the court granted. We discuss
{5} In granting Defendant’s motion to dismiss, the district court’s findings included that “[t]his is a simple case, in which a delay of longer than one year is presumptively prejudicial to Defendant.” In State v. Garza, 2009-NMSC-038, ¶ 2, 146 N.M. 499, 212 P.3d 387, we “update[d] our guidelines for determining the length of delay necessary to trigger the speedy trial inquiry[:] twelve months for simple cases, fifteen months for cases of intermediate complexity, and eighteen months for complex cases” (Garza guidelines). Accordingly, the district court found the three-year length of delay—being three times the Garza guideline—to be presumptively prejudicial to Defendant, thereby triggering further inquiry into the Barker factors. See State v. Urban, 2004-NMSC-007, ¶ 11, 135 N.M. 279, 87 P.3d 1061 (“The first factor, the length of the delay, serves two functions. Initially, the length of delay must cross a threshold to establish a presumption of prejudice and to trigger further inquiry into the other factors. Once that threshold has been crossed, the burden of persuasion shifts to the [s]tate to show that, considering the four factors as a whole, the defendant’s constitutional rights have not been violated.”).
{6} Analyzing the reasons-for-delay factor, the district court began by attributing
{7} For the assertion-of-the-right factor, the district court found that “Defendant has more than adequately asserted his speedy trial right in this case by filing about five demands for speedy trial, in addition to the present motion to dismiss.”
{8} For the prejudice factor, the district court found particularized prejudice in Defendant having “lost employment and housing opportunities, his liberty [having] been restricted to the boundaries of Colfax County for three years, and [his having] been subject to arrest at any time during the past three years if he violates that restriction.” The court found exacerbation of “typical stress and anxiety” in such a case due to “the extreme delay . . . attributable to the government.” Alternatively, the district court found presumed prejudice under “the prosecution’s bureaucratic indifference to the capacity of the criminal justice system [which] has caused a delay
{9} In granting Defendant’s motion to dismiss, the district court implicitly weighed the Barker factors and concluded, under a finding of either presumed or particularized prejudice, that Defendant’s right to a speedy trial was violated. The State timely appealed.
{10} The Court of Appeals reversed the district court in a memorandum opinion, concluding that Defendant failed to show particularized prejudice and that the other three factors did not all weigh heavily to support a claim of presumed prejudice. Schuster, A-1-CA-40322, mem. op. ¶ 26; see Garza, 2009-NMSC-038, ¶ 39 (“[G]enerally a defendant must show particularized prejudice of the kind against which the speedy trial right is intended to protect. However, if the length of delay and the reasons for the delay weigh heavily in [the] defendant’s favor and [the] defendant has asserted [the] right and not acquiesced to the delay, then the defendant
{11} Applying the Barker factors, the Court of Appeals first deferred to the district court’s written finding that this is a simple case, determined the three-year length of delay triggered further analysis under Barker, and weighed the length-of-delay factor heavily against the State. Schuster, A-1-CA-40322, mem. op. ¶¶ 3-4 & n.1.
{12} Analyzing the reasons-for-delay factor, the Court of Appeals organized the total delay between arrest and dismissal into six specific periods, organization that the parties do not contest and we adopt below. Id. ¶ 7.
{13} During Period (A), March 8, 2019, to June 14, 2019 (three months and one week), the case was before the magistrate court. Id. ¶ 8. The Court of Appeals attributed two months of this period to Defendant for his requested extension of time regarding the preliminary examination and the remaining one month and one week of the period to the State as negligent or administrative delay. Id. ¶ 9.
{14} During Period (B), June 15, 2019, to March 16, 2020 (nine months), the case was bound over to the district court. Id. ¶ 7. The Court of Appeals confirmed and accepted the State’s concession that the delay during Period (B) was negligent or administrative, noting the State “actively moved the case forward” only between June and August. Id. ¶¶ 10-11. Subsequent to the State’s filings on August 26, 2019,
{15} During Period (C), March 17, 2020, to July 15, 2020 (four months), jury trials were suspended due to the COVID-19 pandemic. Id. ¶ 12. The district court did not assign this delay to either party, and accordingly, the Court of Appeals “presume[d] the district court was correct.” Id. ¶ 13.
{16} During Period (D), July 16, 2020, to November 15, 2020 (four months), the suspension of jury trials was lifted, but the Court of Appeals concluded the State did not take “any action to move the case forward.” Id. ¶ 14. The Court weighed Period (D) against the State as negligent or administrative delay. Id.
{17} During Period (E), November 16, 2020, to January 1, 2021 (one month and two weeks), jury trials were again suspended due to the COVID-19 pandemic.
{18} Period (F), January 2, 2021, to March 16, 2022 (fourteen months and two weeks), commenced when the suspension of jury trials was again lifted. Id. ¶ 16. The Court of Appeals determined “the State made no attempt to move the case forward” during Period (F), including representing to the district court in February 2022 “that it had neither subpoenaed nor contacted its witnesses even though the trial was scheduled in three weeks.” Id. The Court also recognized that trial was rescheduled twelve times by the district court during Period (F) without any reason being provided and that Defendant filed two additional written demands for a speedy trial and his motion to dismiss. Id. The Court of Appeals weighed Period (F) against the State as “negligent or administrative delay related to a ‘congested docket.’” Id. (brackets omitted) (quoting Garza, 2009-NMSC-038, ¶ 29).
{19} In weighing the aggregated periods of delay, the Court of Appeals recognized “[t]he State’s twenty-eight[-]month delay is twice as long as that necessary to trigger a speedy trial inquiry of a simple case” and that, while “the State made some efforts to take the case to trial, . . . there are long periods of time in which it either was inactive, caused further delay, or did not move the case forward.” Id. ¶ 17. The Court then concluded “the State’s delay weighs moderately to heavily” and that, “[b]ecause
{20} Analyzing the assertion-of-the-right factor, the Court of Appeals concurred with the district court “that Defendant ‘more than adequately asserted his speedy trial right’” but nonetheless did not weigh this factor heavily against the State. Id. ¶ 22. The Court stated that any one of Defendant’s five assertions “would suffice”—we note six assertions in the record2—but explained two reasons for not weighing the factor heavily. Id. ¶ 20.
First, other than his motion to dismiss, his assertions are pro forma and therefore are given little weight. See [Ochoa, 2017-NMSC-031, ¶ 41]. Defendant’s three written demands are identical to each other, the body of each is one sentence, and none contain any argument or provide details about the alleged violation. Second, Defendant’s written assertions and motion to dismiss were all filed within months of scheduled trials. Such assertions merit less weight because, “the closer to trial an assertion is made, the less weight it is given.” [State v.] Gurule, 2025-NMSC-010, ¶ 39[, 536 P.3d 775] (text only) (citation omitted).
Schuster, A-1-CA-40322, mem. op. ¶ 20.
{22} The Court of Appeals reversed the grant of the motion to dismiss on the basis of the lack of particularized prejudice and the other three Barker factors not weighing heavily against the State as required under a presumed prejudice analysis. Id. ¶ 26. Defendant timely appealed, and this Court granted the petition for writ of certiorari as to whether the Court of Appeals properly weighed the Barker factors.
II. DISCUSSION
{23} In reviewing a speedy trial claim under the four-factor test in Barker, “We defer to the district court’s factual findings . . . but weigh each factor de novo.” Ochoa, 2017-NMSC-031, ¶ 4. “The speedy trial analysis is not a rigid or mechanical exercise, but rather ‘a difficult and sensitive balancing process.’” Id. ¶ 5 (quoting Barker, 407 U.S. at 533). “The speedy trial right is ‘amorphous, slippery, and necessarily relative.’” Id. (quoting Vermont v. Brillon, 556 U.S. 81, 89 (2009)); see also Garza, 2009-NMSC-038, ¶ 13 (“Barker’s formulation ‘necessarily compels courts to approach speedy trial cases on an ad hoc basis’” (quoting Barker, 407 U.S.
A. The Length-of-Delay Factor Weighs Heavily Against the State
{24} The total delay in this case is more than three years between Defendant’s arrest and the grant of the motion to dismiss. Being three times the Garza guideline for a simple case, this length of delay is presumptively prejudicial and requires further inquiry into the Barker factors. Garza, 2009-NMSC-038, ¶ 21; see also State v. Serros, 2016-NMSC-008, ¶ 26, 366 P.3d 1121 (“A delay that crosses the threshold for presumptive prejudice necessarily weighs in favor of the accused; the only question is, how heavily?”). But see Garza, 2009-NMSC-038, ¶ 49 (“Wе emphasize that these guidelines should not be construed as bright-line tests. Rather, they are meant to guide the district courts’ determination of ‘presumptively prejudicial’ delay.”).
{25} As the first factor, the length of delay is not at issue here, as we agree with both lower courts and both parties that this factor weighs heavily against the State. See
B. The Reasons-for-Delay Factor Weighs Heavily Against the State
{26} As we explain herein, when analyzing the reasons-for-delay factor, the Court of Appeals should have assigned heavy weight to the State’s protracted delay because that delay constituted bureaucratic indifference. Concurrently, this delay was exacerbated by the prosecutorial policy of taking every case to trial and offering pleas without favorable terms—a policy recognized by the district court as effecting systemic delay in Colfax County. Under either of these considerations, we hold this factor weighs heavily against the State. We additionally caution that when determining the weight of this factor, courts should not apply methodologies that improperly defray or excuse governmental culpability.
{27} “Closely related to length of delay is the reason the government assigns to justify the delay. The reasons for a period of the delay may either heighten or temper the prejudice to the defendant caused by the length of the delay.” Garza, 2009-NMSC-038, ¶ 25 (internal quotation marks and citations omitted). As the Court of Appeals correctly noted, Schuster, A-1-CA-40322, mem. op. ¶ 23, the Barker test considers three types of delay:
First, [a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. Second,
negligent or administrative delay weighs less heavily but nevertheless weighs against the [s]tate because the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Third, neutral delay, or delay justified by a valid reason, does not weigh against either party.
Ochoa, 2017-NMSC-031, ¶ 18 (first alteration in originаl) (internal quotation marks and citations omitted); see Barker, 407 U.S. at 531 (“[D]ifferent weights should be assigned to different reasons.”).
1. The reasons-for-delay factor weighs heavily due to the protractedness of the negligent delay and the inaction by the State amounting to bureaucratic indifference
{28} Importantly for this case, we have recognized, “The degree of weight we assign against the [s]tate for negligent delay is closely related to the length of delay: ‘[O]ur toleration of such negligence varies inversely with its protractedness, and its consequent threat to the fairness of the accused’s trial.’” Garza, 2009-NMSC-038, ¶ 26 (second alteration in original) (quoting Doggett v. United States, 505 U.S. 647, 657 (1992)). We have further recognized that negligent delay may rise to the level of bureaucratic indifference, which “weigh[s] more heavily against the state than [negligence based on] simple case overload, particularly when the defendant has attempted to safeguard his rights.” Zurla v. State, 1990-NMSC-011, ¶ 16, 109 N.M. 640, 789 P.2d 588. As our Court of Appeals has stated, such bureaucratic indifference may be demonstrated by “[t]he [s]tate’s failure to act.” Palacio, 2009- NMCA-074, ¶ 19. While Zurla and Palacio both concerned the state’s insufficient efforts to locate incarcerated defendants, the principle we cite is not bound to that context. See Zurla, 1990-NMSC-011, ¶ 15 (criticizing “an unacceptable indifference by the prosecution to its constitutional duty ‘to make a diligent, good-faith effort to bring a defendant to trial’” (quoting Smith v. Hooey, 393 U.S. 374, 383 (1969))); see also Doggett, 505 U.S. at 657 (“[P]ersistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice.”); State v. Moore, 2016-NMCA-067, ¶ 14, 378 P.3d 552 (weighing eight months heavily against the state where its “actions [in the magistrate court], or lack thereof, qualify as bureaucratic indifference”); Taylor, 2015-NMCA-012, ¶¶ 15-17 (assigning heavy weight to the reasons-for-delay factor where “the [s]tate did nothing to bring the case to trial . . . and offers no explanation for its inaction”); State v. Stock, 2006-NMCA-140, ¶ 25, 140 N.M. 676, 147 P.3d 885 (“[T]he [s]tate’s inaction in this case can be characterized as ‘bureaucratic indifference,’ which we have held to weigh against the state more heavily than mere negligence.” (quoting State v. Laney, 2003-NMCA-144, ¶ 17, 134 N.M. 648, 81 P.3d 591)).
{29} The Court of Appeals characterized the State’s culpable delay in the present case—identified by the Court in Periods (A), (B), (D), and (F)—as negligent or administrative, noting that “nothing in the record suggests deliberate or intentional
The State’s twenty-eight[-]month delay is twice as long as that necessary to trigger a speedy trial inquiry of a simple case. During those twenty-eight months, the record shows that the State made some efforts to take the case to trial, but there are long periods of time in which it either was inactive, caused further delay, or did not move the case forward.
Id. ¶ 17 (citation omitted).
{30} We conclude the Court of Appeals underweighed the State’s culpability where Period (F) alone constitutes a period of negligent delay so protracted as to weigh this factor heavily against the State and where the State’s persistent inaction constitutes bureaucratic indifference. The case remained in apparent limbo for more than a year during Period (F), rescheduled almost every month without any stated reason, and “the State made no attempt to move the case forward” during this period. Id. ¶ 16. Meanwhile, Defendant asserted his desire for a speedy trial during Period (F) through two written motions and his motion to dismiss, thereby “attempt[ing] to safeguard his rights” in a manner further supporting heavy State culpability. Zurla, 1990-NMSC-011, ¶ 16. Despite these facts, and despite this fourteen-month-and
{31} The State does not meaningfully refute these facts. The State primarily argues that the factor should not weigh heavily where “[t]here is nothing in the record suggesting that the delay was intentional or tantamount to intentional.” Attempting to answer Defendant’s invocation of Taylor, the State further claims, without supporting detail, that this case does not involve conduct that falls within the “‘inexcusably indifferent’” governmental conduct in that case.
{32} The State’s cursory arguments fail. First, as our caselaw cited herein establishes, intentionality is not a requirement for concluding heavy weight of the factor either under protractedness of negligent delay generally or under bureaucratic
{33} The dissent asserts that classifying otherwise negligent delay as bureaucratic indifference requires evidence the state took no affirmative steps to advance a case despite possessing available resources to do so, whereas “[h]ere there is no action the State failed to take.” Dissent ¶¶ 83-86. We agree that the essence of bureaucratic indifference under Zurla, Palacio, and Taylor is the state’s failure to act where it otherwise could do so. Zurla, 1990-NMSC-011, ¶ 15; Palacio, 2009-NMCA-074, ¶
2. The reasons-for-delay factor weighs heavily due to the prosecutorial policy exacerbating delay as found by the district court
{34} Additionally, Defendant points to the district court’s findings “that the delay in this case resulted from the policy of the Colfax County district attorney’s office” of refusing to offer “meaningful pleas or diversion [programs]” even for low-level felonies, resulting in unique systemic congestion that rendered speedy trials unavailable to defendants in that jurisdiction.
{36} As discussed abоve, the district court found that the prosecutorial policy in question was responsible “for the delay in this case and other cases like it” where the resultant congestion of the trial docket “has rendered it impossible for defendants to get speedy trials.” The court further found the relevant policy had been exercised for at least five years, the “ever-expanding jury trial docket” was not attributable to the COVID-19 pandemic, and “nothing has changed” in this situation despite the court raising the issue with the prosecution in each of the previous two years. These
Analyzing the plea that was offered [in this fourth-degree felony case], it‘s not a great plea. . . . What‘s happening now is we just have a whole docket flooded with low-level felonies. . . . The court can‘t possibly have 100, 150 jury trials. We don‘t even have enough people in the county to serve on those juries. . . . The way I see it is that it‘s the [prosecutor‘s] office that‘s in complete control over how many cases are maintained on the court‘s docket [and over] how many cases that the public defenders have to have on their caseload.
While the issues were discussed at length by the court and counsel for both parties, the existence and effect of the prosecutorial policy at issue was not meaningfully rebutted by the State at the hearing. Under the foregoing evidence, we have no trouble concluding the district court‘s findings regarding the relevant prosecutorial policy are sufficiently substantiated by the record to warrant deference.
{37} Before this Court, the State effectively concedes the issue. The State acknowledges the district court‘s relevant findings and relies on the premise that, “even if the prosecution‘s plea bargaining approach resulted in more trials and a larger trial docket, that does not equate to intentional delay or anything functionally equivalent.” As we have discussed, intentionality is not a requirement for heavy culpability for this factor.
- The absence of a “rule of criminal procedure in the district courts setting forth a time limit for trial as there is in the magistrate courts” which would provide “incentive for prosecutors in Colfax County to seek early and efficient resolution of cases“;
- The “policy” exercised by “[t]he prosecutors who have worked in Colfax County over the last five years or more, and more particularly the prosecutors
who have been involved [in] this case” “of prosecuting all types of cases to the fullest extent and offering plea agreements that provide relatively little benefit to defendants“; - The court‘s “ever-expanding jury trial docket (from about 50 cases in 2019 to about 175 cases as of February 2022),” resulting in “an untenable bottleneck that has rendered it impossible for defendants to get speedy trials“;
- The effects of the pandemic not being responsible for the congested jury trial docket in Colfax County, which “would still contain around 150 or more cases and would still be expanding each month” under the prosecutorial policy; and
- The court having “raised this issue with the prosecution in 2020 and again in 2021, and nothing has changed.”
Additionally, the concerns of
{39} The dissent also asserts the district court‘s commentary on the specific plea terms offered to Defendant was improper. Dissent ¶ 102. We disagree. The issue before the court included whether the State was culpable for unreasonable delay in violation of Defendant‘s right to a speedy trial. Discussion at the hearing relevantly included whether a prosecutorial policy existed in tension with the State‘s obligation to move cases forward, including Defendant‘s case. In that context, it was not improper for the court to consider whether the prosecution had taken available steps to advance Defendant‘s three-year-old case, including offering reasonable plea terms. This was not a hearing for judicial approval of the plea itself, and thus the dissent‘s citations invoking the specter of judicial curtailment of prosecutorial discretion are inapposite. Dissent ¶ 103. Discussion of a potential violation of a defendant‘s speedy trial right does not bear on the prosecutor‘s discretion to offer plea terms, and such discretion does not affect the district court‘s ability to act in furtherance of a defendant‘s rights. The dissent‘s misplaced conсerns distract from our weighty interests here: “For more than one hundred years this Court has recognized the authority of courts to act to protect a defendant‘s fundamental rights.” State v. Vasquez, 2025-NMSC-008, ¶ 17, 563 P.3d 901 (citing State v. Garcia, 1914-NMSC-065, ¶ 18, 19 N.M. 414, 143 P. 1012 (on motion for rehearing)); see Garcia, 1914-NMSC-065, ¶ 18 (“There exists in every court, however, an inherent power to see that a [person]‘s fundamental rights are protected in every case.“).
{40} We have previously recognized the role of a prosecutorial policy in contributing to the heavy weight of the reasons-for-delay factor. In Serros, the state exercised a policy in sexual abuse cases of “restrict[ing] interviews of the victim and the victim‘s family” until the conclusion of plea negotiations. 2016-NMSC-008, ¶ 71. While “mindful of the need to avoid re-traumatizing victims and their families,” we concluded the resultant delay in that case “illustrates the havoc that such a policy can wreak on an accused‘s right to a speedy trial.” Id. ¶ 72. In combination with other negligent delay by the state, we held this prosecutorial policy resulted in the factor weighing heavily in the defendant‘s favor. Id. ¶ 75.
{41} In this case, deferring to the district court‘s findings, we conclude the pattern of unexplained trial continuances—sixteen between January 2020 and February 2022, only two of which were filed during pandemic-related trial suspensions—was exacerbated, if not fully caused, by the prosecutorial policy at issue. Under this conclusion, the systemic delay created by the policy and faced by Defendant would sustain our holding of heavy weight for this factor even apart from our analysis above regarding negligent delay and bureaucratic indifference. Doubtless, in the
3. Proper methodology in weighing the reasons-for-delay factor
{42} We take this opportunity to review methodologies the Court of Appeals may have applied in reaching its moderate-to-hеavy result for the reasons-for-delay factor. We clarify that proper reasons-for-delay analysis focuses on the actual culpability of the parties, not relative culpability or a balancing of the months of delay attributable to each party. See
{44} Alternatively, however, if the Court of Appeals’ conclusion of moderate-to-heavy weight reflects either that the Court (1) was describing the range of the State‘s culpability across its multiple periods of delay or (2) averaged the weights of those multiple periods of delay, then applying either methodology was error. If the former, the Court‘s result presumably conveys the range between the State‘s moderate culpability in Periods (A) and/or (B) and its heavy culpability in Periods (D) and/or (F); if the latter, the Court‘s result presumably conveys the State‘s heavy culpability
{45} In a case such as this one, wherein a sufficiently prolonged period of negligent delay or a sufficient period of bureaucratic indifference warrants heavy weight of the factor against the state, such a critical mass of heavy delay cannot be ameliorated or exonerated by the existence of additional delay of lesser weight. We offer an extreme hypothetical to illustrate the improper effect otherwise: a defendant seeking a speedy trial who initially experiences six months of negligent delay warranting only moderate weight against the state, then endures five years of complete inaction by the state in dereliction of its constitutional duty to bring the defendant to trial. In such a case, the initial six-month period of delay is ancillary to the critical analysis: is the state responsible for delay of sufficient length and culpability to constitute heavy weight of the factor? To be clear, a result of less-than-heavy weight would be error in the hypothetical if reached either through characterizing the range of the initial six-month and subsequent five-year periods of delay or through averaging the two periods; put simply, governmental delay that crosses such a factual threshold of length and degree warrants heavy weight of the reasons-for-delay factor against the state, and dissipation of that weight by additional delay is patently illogical.
{47} Nothing in Barker or its progeny directs application of an offset or counterbalancing proposition within the reasons-for-delay factor, and we caution lower courts against applying such a methodology. In the ultimate balancing of the four factors, Barker referred to factors on one side of the analysis “counterbalancing” factors on the other side, 407 U.S. at 534, as makes sense in any balancing test, but no such approach has been applied in this line of cases within the
{48} The reasons-for-delay factor “has been described as the focal inquiry in the speedy trial balancing test.” State v. Coffin, 1999-NMSC-038, ¶ 60, 128 N.M. 192, 991 P.2d 477 (internal quotation marks and citation omitted). Barker instructs that to analyze this second factor, we consider “the reason the government assigns to justify the delay.” 407 U.S. at 531. We interpret this to mean that the focus of the reasons-for-delay factor is to what degree, if any, the state bears responsibility for the pretrial delay. See Serros, 2016-NMSC-008, ¶ 26 (“A delay that crosses the threshold for presumptive prejudice necessarily weighs in favor of the accused; the only question is, how heavily?“). The focus of the second factor is not length-of-delay or the defendant‘s actions; these are the focus of factors one and three. While the other factors are “[c]losely related” to the reasons for delay, and extreme delay can increase the culpability of a party, see Barker, 407 U.S. at 531; Zurla, 1990-NMSC-011, ¶ 15, anаlysis of this factor should center on the length and degree of
C. The Assertion-of-the-Right Factor Weighs Heavily Against the State
{49} In analyzing the third Barker factor, the Court of Appeals agreed with the district court that “Defendant adequately asserted his right to a speedy trial” but nonetheless did “not assign heavy weight to these [assertions].” Schuster, A-1-CA-40322, mem. op. ¶ 20. Citing precedent, the Court reasoned that less weight was warranted where (1) Defendant‘s assertions, other than the motion to dismiss, were pro forma and (2) “Defendant‘s written assertions and motion to dismiss were all filed within months of scheduled trials.” Id. In other words, the Court assigned less-than-heavy weight to Defendant‘s assertions based on their lack of force and their proximity to trial. Under Barker, Garza, and Ochoa, we conclude the evidence supports heavy weight of this factor in Defendant‘s favor.
{51} Garza and Ochoa reflect this perspective on the role of the assertion-of-the-right factor under Barker, pointing to relevant considerations that may help a court in reaching an accurate assessment of the legitimacy of the defendant‘s stated desire for a speedy trial. In Garza, we explained that the timing and manner of a defendant‘s assertions of the right inform the “‘frequency and force‘” of such assertions as considered in Barker, and that “the defendant‘s actions with regard to the delay” may be relevant to the weight of this factor. Garza, 2009-NMSC-038, ¶ 32 (quoting Barker, 407 U.S. at 529); see id. (“[T]he timeliness and vigor with which the right is asserted may be considered as an indication of whether a defendant was denied needed access to speedy trial over his objection or whether the issue was raised on appeal as afterthought.“). Following Barker, we read this guidance in Garza to direct that a defendant‘s acquiescence or contribution to delay may cast doubt on the legitimacy of the defendant‘s stated desire for a speedy trial.
{52} Similarly in Ochoa, we reiterated “the importance of closely examining the circumstances of each case,” including “a defendant‘s actions with regard to the
{54} From these precedential perspectives, we glean an important principle: where the facts such as the force and frequency of the defendant‘s assertions establish the legitimacy of the defendant‘s stated desire for a speedy trial and where that conclusion is not refuted by contrary evidence, the critical inquiry in Barker is satisfied. In such a case, the factor should weigh heavily in favor of the defendant, rather than a court applying a hypertechnical standard that effectively underweighs a legitimate assertion of the right. See Barker, 407 U.S. at 531-32; Garza, 2009-NMSC-038, ¶ 32 (quoting Barker, 407 U.S. at 529); Ochoa, 2017-NMSC-031, ¶ 42; see also Seth Osnowitz, Note, Demanding a Speedy Trial: Re-Evaluating the Assertion Factor in the Barker v. Wingo Test, 67 Case W. Rsrv. L. Rev. 273, 295 (2016) (“Ambiguous standards for what constitutes a sufficiently vigorous or timely assertion—and the omnipresent argument of defendants acquiescing to delays—make the assertion[-of-the-right] factor an excuse for courts to unjustly rеfuse to dismiss cases.“).
{56} Applied here, we agree with the district court that “Defendant . . . more than adequately asserted his speedy trial right in this case” through his six4 assertions of the right, including his motion to dismiss. While Defendant‘s written demands for a speedy trial prior to the motion to dismiss were each a single-sentence assertion of
{58} In sum, the frequency of Defendant‘s assertions and the force of his motion to dismiss support the legitimacy of his stated desire for a speedy trial, and apart from his initial sixty-day continuance pursuant to the preliminary examination,5 nothing
D. We Reverse Without Reaching Analysis of the Prejudice Factor
{59} As discussed, Defendant challenges the Court of Appeals’ determination that Defendant did not show particularized prejudice, further asserting thе Court of Appeals ignored its own precedent in concluding his claimed prejudice was not particularized.
{60} Because we have held that each of the first three factors weighs heavily against the State, however, we need not reach prejudice analysis to conclude that Defendant‘s right to a speedy trial was violated. Garza, 2009-NMSC-038, ¶ 39. As we stated in Zurla:
[W]hen the state unjustifiably has delayed a defendant‘s trial beyond a reasonable time, disregarding the defendant‘s demand for an early trial, undue emphasis should not be placed on whether the defendant is able to adduce evidence of identifiable prejudice. To hold otherwise would in effect attribute to this factor “talismanic qualities” antithetical to the understanding that animated Barker.
“A defendant desiring a speedy trial . . . should have it within some reasonable time; and only special circumstances presenting a more pressing public need with respect to the case itself should suffice to justify delay. Only if such special considerations are in the case and if they outweigh the inevitable personal prejudice resulting from delay would it be necessary to consider whether there has been or would be [particularized] prejudice.”
Zurla, 1990-NMSC-011, ¶ 35 (quoting Barker, 407 U.S. at 537-38 (White & Brennan, JJ., concurring)). Echoing these considerations, we therefore reverse the Court of Appeals and remand to the district court for dismissal with prejudice.
{61} IT IS SO ORDERED.
C. SHANNON BACON, Justice
WE CONCUR:
JULIE J. VARGAS, Chief Justice
MICHAEL E. VIGIL, Justice
DAVID K. THOMSON, Justice, dissenting
BRIANA H. ZAMORA, Justice, dissenting
{62} “The heart of the right to a speedy trial is preventing prejudice to the accused.” State v. Garza, 2009-NMSC-038, ¶ 12, 146 N.M. 499, 212 P.3d 387. Thus, in speedy trial cases, we do not forego an analysis of prejudice against the defendant absent specific circumstances. Because those circumstances are not present here and because Defendant did not show any prejudice to him, the Court of Appeals was correct in reversing the dismissal of Defendant‘s case. Accordingly, we respectfully dissent.
{63} To determine whether a defendant‘s speedy trial right was violated, “we consider the four factors articulated in Barker [v. Wingo, 407 U.S. 514, 530 (1972)]: (1) the length of delay in bringing the case to trial, (2) the reasons for the delay, (3) the defendant‘s assertion of the right to a speedy trial, and (4) the prejudice to the defendant caused by the delay” (the Barker factors). State v. Serros, 2016-NMSC-008, ¶ 5, 366 P.3d 1121. “We weigh these factors according to the unique circumstances of each case in light of ‘the [s]tate and the defendant‘s conduct and the harm to the defendant from the delay.‘” Id. (quoting Garza, 2009-NMSC-038, ¶¶ 12-13). “None of the[] factors are dispositive, and no single factor alone is necessary or sufficient.” State v. Gurule, 2025-NMSC-010, ¶ 11, 563 P.3d 775. “[M]erely showing delay in bringing an accused‘s case to trial is not enough to
{64} This Court has written at length about the particularized prejudice required to establish a speedy trial violation and has concluded that in cases where the first three Barker factors weigh heavily against the state, the defendant need not show particularized prejudice. Garza, 2009-NMSC-038, ¶ 39. The majority erroneously expands the bounds of what we have previously weighed heavily against the state by concluding that a sufficiently long delay may itself constitute bureaucratic indifference such that the second factor is also weighed heavily against the state. Maj. op. ¶¶ 28-30, 45. This represents a consequential shift in our speedy trial law that effectively conflates the first two Barker factors and risks violating an essential holding of Barker: that “none of the four factors . . . [is] either a necessary or sufficient condition to the finding of a depravation of the right of speedy trial.” 407 U.S. at 533. The majority then places further weight on the merged first and second factor by treating the third factor as a mere formality. Maj. op. ¶¶ 49-54. The ease with which defendants may now avoid having to show actual and particularized prejudice is antithetical to the purpose of our speedy trial jurisprudence. The
{65} We examine the majority‘s mischaracterizations of our speedy trial jurisprudence and assess the facts before us in light of a proper reading of the Barker factors. In doing so, we conclude that Defendant‘s speedy trial right was not violated. Accordingly, we would affirm the Court of Appeals ruling.
I. DISCUSSION
A. Length of Delay
{66} As a preliminary matter, we describe the uncontested conclusion of the majority regarding the first factor, the length of the delay. “The first factor is ‘a triggering mechanism,’ which starts an ‘inquiry into the other factors that go into the balance.‘” Gurule, 2025-NMSC-010, ¶ 12 (quoting Barker, 407 U.S. at 530). Any delay longer than a year for a simple case is presumptively prejudicial. Garza, 2009-NMSC-038, ¶ 47. Defendant‘s trial was delayed for over three years. This delay thus “crosses the threshold for presumptive prejudice [and] necessarily weighs in favor of the accused.” Serros, 2016-NMSC-008, ¶ 26. Both parties agree that this factor weighs heavily against the State, and the first factor is not at issue.
{67} The second factor in the Barker analysis requires a court to evaluate “‘the reason the government assigns to justify the delay.‘” Garza, 2009-NMSC-038, ¶ 25 (quoting Barker, 407 U.S. at 531). “The reasons for a period of the delay may either heighten or temper the prejudice to the defendant caused by the length of the delay.” Id. (internal quotation marks and citation omitted). Where the state has deliberately delayed the trial to hamper the defense, the second factor should weigh heavily against the state. Serros, 2016-NMSC-008, ¶ 29. “[N]egligent or administrative delay . . . should be weighted less heavily but nevertheless . . . must rest with the government rather than with the defendant.” Garza, 2009-NMSC-038, ¶ 26 (internal quotation marks omitted) (quoting Barker, 407 U.S. at 531). Valid reasons, which justify delay, should not weigh against either party. Barker, 407 U.S. at 531. Finally, “delay caused by the defense weighs against the defendant.” Vermont v. Brillon, 556 U.S. 81, 90 (2009).
{68} While we largely agree with the majority and the Court of Appeals’ division of the delay in this case into periods of time, we make one clarification.
{69} The Court of Appeals and the majority list the second period, Period B, as June 15, 2019, to March 16, 2020, nine months, and weigh this delay slightly against the State. State v. Schuster, A-1-CA-40322, mem. op. ¶¶ 10-11 (N.M. Ct. App. Apr. 10, 2024) (nonprecedential); maj. op. ¶ 14. However, doing so ignores that on January 6, 2020, the district court held а docket call and Defendant did not appear. Because Defendant did not appear, the district court put Defendant on a trailing docket and set another docket call for March 2, 2020, two months later, where the State acknowledged that it would not be ready for trial because it had not received results from the drug testing laboratory. These two months should be weighed against Defendant, and not the State, as it was his failure to appear that caused the delay.
1. The correct timeline
{70} March 8, 2019, to June 14, 2019, three months. This case was before the magistrate court. Two months of this time is attributable to Defendant because he requested an extension; the remaining month is attributable to the State as administrative delay.
{71} June 15, 2019, to January 6, 2020, seven months. We concur with the Court of Appeals that this period amounted to negligent delay and should weigh only slightly against the State. Schuster, A-1-CA-40322, mem. op. ¶¶ 10-11.
{72} January 6, 2020, to March 2, 2020, two months. Defendant failed to appear at the docket call on January 6, 2020, so the district court placed Defendant on a trailing
{73} March 2, 2020, to March 17, 2020, two weeks. At the docket call on March 2, 2020, the State acknowledged that it would not be ready for trial because it had not yet obtained lab results for the controlled substance found in Defendant‘s possession during his arrest. Then on March 17, 2020, this Court suspended all jury trials. See Order, No. 20-8500-002, at 3 (N.M. Sup. Ct. Mar. 17, 2020). The delay here was administrative, and these two weeks should weigh slightly against the State.
{74} March 17, 2020, to July 15, 2020, four months. During this period, this Court suspended jury trials due to the COVID-19 pandemic. See
{76} November 16, 2020, to January 1, 2021, one month and two weeks. During this period this Court again suspended all jury trials due to the COVID-19 pandemic. See Order, No. 20-8500-039, at 16 (N.M. Sup. Ct. Nov. 13, 2020). On November 19, 2020, the district court put Defendant on a trailing docket set for January 25, 2021. This delay should not weigh against either party.
{77} January 2, 2021, to February 28, 2022, fourteen months. Over this period the district court sua sponte rescheduled trial eleven times, each time without any explanation. No continuances were requested by either party during this time; the entirety of the delay was caused by the district court‘s rescheduling. Aside from the scheduling orders, the record contains very little during this time. The State amended its witness list and substituted counsel. Defendant filed two more demands for speedy trial, both one sentence long and identical in substance to the “Second Demand for Speedy Trial.”
{79} Also at the docket call, Defendant for the first time suggested that he would move to dismiss on speedy trial grounds if the case did not go to trial as scheduled. Despite there being no indication that trial would nоt be going forward as scheduled, Defendant filed his motion to dismiss on March 4, 2022.
{80} Given that the delay in this case attributable to the State is almost entirely administrative, we would weigh this factor moderately against the State. The
{81} The majority rests most of its analysis of this factor on two separate bases, both of which it claims require weighing the factor heavily against the State: (1) that “the State‘s protracted delay . . . constituted bureaucratic indifference” rather than negligent or administrative delay and (2) the district court‘s finding that there was a “prosecutorial policy of taking every case to trial and offering pleas without favorable terms—a policy recognized by the district court as effecting systemic delay in Colfax County.” Maj. op. ¶ 26. However, neither of these bases is supported by the record before us, and the weight assigned to them does not comport with our speedy trial precedent. We address each in turn.
2. The distinction between negligent delay and bureaucratic indifference
{82} In Zurla v. State, 1990-NMSC-011, 109 N.M. 640, 789 P.2d 588, we clarified that negligent delay is “a ‘more neutral reason’ that, along with excessive caseload, weigh[s] ‘less heavily’ against the state than intentional delay.” Id. ¶ 14 (quoting Barker, 407 U.S. at 531). However, we also noted that simply labeling a delay “negligent” is insufficient to fix the weight at a lower level and sought to distinguish
{83} The majority elides the distinction between bureaucratic indifference and negligent delay, apparently based on the length of delay. Maj. op. ¶ 28. Though the majority correctly notes that the weight against the state for negligent delay increases with the length of delay, it goes beyond our current precedent when it relies on Zurla to assume that a longer period of administrative negligence is equivalent to bureaucratic indifference. Maj. op. ¶ 28. Zurla provides that bureaucratic indifference occurs when resources are available to move towards trial but those resources go unused—it does not provide that a longer delay is presumptively bureaucratic indifference. 1990-NMSC-011, ¶ 15. The majority compounds its error by presuming that bureaucratic indifference must be weighed heavily against the state, when Zurla simply provides it must be weighed “more heavily” than mere negligence. Id. ¶ 16; maj. op. ¶ 28.
{85} Here there is no action the State failed to take. When the trial was continued without a new date, the State requested a scheduling order. Then, the district court rescheduled the trial almost every month, often placing the case on a trailing docket. For over a year, as far as the State knew, this case was going to trial, and the State needed only to be prepared to go to trial when it was scheduled. When there was finally a docket call, the State said it would be ready for trial as scheduled. The delay was almost entirely caused by a congested docket and therefore should weigh only slightly against the State. See Gurule, 2025-NMSC-010, ¶ 24 (“Mere negligence or administrative delays weigh less heavily against the state.” (citing Serros, 2016-NMSC-008, ¶ 29)); Ochoa, 2017-NMSC-031, ¶ 18 (“[N]egligent or administrative delay weighs less heavily . . . against the [s]tate.“); Barker, 407 U.S. at 531 (“A more neutral reason such as negligence or overcrowded courts should be weighted less heavily.“).
{87} The majority‘s second basis for weighing the reasons for delay factor heavily against the State was the district court‘s finding that the congested docket was the result of “the relevant prosecutorial ‘policy of prosecuting all types of cases to the fullest extent and offering plea agreements that provide relatively little benefit to defendants.‘” Maj. op. ¶ 35. This is an error for two reasons: First, the majority wholeheartedly accepts the district court‘s findings with no evidentiary basis, and in doing so creates a novel—and unbriefed—legal concept in New Mexico: implied judicial notice. Second, the majority endorses an improper exertion of influence over prosecutorial discretion.
a. There is no evidentiary support for the existence of the prosecutorial policy relied on by the majority
{88} The majority is correct; the factual findings of a district court in a speedy trial claim are entitled to deference. Maj. op. ¶ 35 (citing Serros, 2016-NMSC-008, ¶ 20). However, they still must be supported by evidence in the record. See State v. Thomas, 2016-NMSC-024, ¶ 11, 376 P.3d 184 (deferring to the district court‘s findings “when that ‘finding is supported by substantial evidence‘” (brackets and ellipsis omitted) (quoting State v. Manzanares, 1996-NMSC-028, ¶ 9, 121 N.M. 798, 918 P.2d 714)). Here, there is no support for the district court‘s findings in the record and no suggestion by anyone other than defense counsel that such a policy existed.
{89} The district court‘s findings of fact about the State‘s alleged plea policy were based on a discussion initiated by the district court at the hearing on Defendant‘s motion to dismiss. The majority refers to “extensive discussion” at the hearing. Maj. op. ¶ 36. It specifically refers to the district court judge‘s comments that there was an extraordinary backlog of cases and that she attributed the backlog to the prosecutor‘s office. Maj. op. ¶ 36. While we are sympathetic to the difficulties such a backlog creates, we simply cannot base our speedy trial analysis on the comments of a district court judge and defense counsel that are not supported by any evidence in the record. The majority‘s concern that “the existence and effect of the prosecutorial policy at issue was not meaningfully rebutted by the State at the hearing” is irrelevant to determining whether or not such a finding was supported by evidence. Maj. op. ¶ 36. Nor is the majority‘s assertion accurate, as the prosecutor said that her case load had decreased in the years since she started in the district, gave examples of cases in which she employed strategies to triage her caseload, and suggested actions the court could take to help reduce the number of cases on the docket.
b. Our rules of evidence do not provide for taking judicial notice by implication
{92} The majority acknowledges the “limited” evidentiary value of the hearing at issue, but it maintains that the prosecutorial policy that caused the delay was established in the record because the district court, under
{93}
{94} The majority eschews our jurisprudence by permitting, for the first time, judicial notice by implication. See maj. op. ¶ 38. Neither party—certainly not Defendant—asked for or briefed the issue. Despite that, the majority now permits
{95} For a court to take judicial notice of a matter, it “must be a subject of common and general knowledge . . . that is well established and authoritatively settled.” Ortiz, 2023-NMSC-026, ¶ 25 (internal quotation marks and citation omitted). Our courts have not historically read this requirement broadly. See, e.g., Hartford Accident & Indem. Co. v Beevers, 1972-NMCA-107, ¶¶ 13-17, 84 N.M. 159, 500 P.2d 444 (upholding the district court‘s refusal to take judicial notice of the “laws of nature” concerning combustible gases (internal quotation marks omitted)), State v. Torres, 1999-NMSC-010, ¶ 42, 127 N.M. 20, 976 P.2d 20 (holding that it would be inappropriate to take judicial notice of the evidentiary reliability of horizontal gaze nystagmus field sobriety testing because its evidentiary value was not “well established and authoritatively settled” (internal quotation marks omitted)). Yet the
c. Prosecutorial policy only factors into a speedy trial analysis when it is directly at issue
{96} In addition to there being no factual basis for the findings regarding the prosecutorial policy at issue, the alleged policy should not be part of a speedy trial analysis at all unless it is directly at issue. The majority points to the county‘s alleged plea policy to justify weighing the reasons-for-delay factor heavily against the State. Maj. op. ¶ 35. It cites Serros, in which this Court recognized that a prosecutorial policy had contributed to a delay in trial. 2016-NMSC-008, ¶¶ 71, 73. In Serros,
{97} The policy at issue in Serros is distinguishable from the alleged plea policy in this case. In Serros, the policy actively inhibited the defendant‘s ability to put on a defense by limiting his access to witnesses. Id. ¶¶ 71-73. “The [s]tate acknowledged that it had prevented [defense counsel] from interviewing the victim while [the d]efendant‘s speedy trial motion was pending.” Id. ¶ 71. The state in Serros actively took steps in conformity with its policy that delayed the trial in that case. Here, to the extent such a plea policy existed at all, there is nothing in the record to show that the policy delayed this case beyond the alleged systemic issues. A criminal defendant has every right to decline a plea deal and go to trial; however, where an overcrowded docket leads to delay in that trial, it should not be weighted heavily against the state as evidence that the plea deal was not good enough.
{98} By adopting the findings of the district court regarding this alleged plea policy, the majority would permit a court to comment on prosecutorial plea policies,
{99} Prosecutors, operating under the executive, ordinarily have the sole discretion to determine whom to charge with public offenses and what charges to bring. See, e.g., State v. Ogden, 1994-NMSC-029, ¶ 20, 118 N.M. 234, 880 P.2d 845 (“[P]rosecutorial discretion in charging is quite broad . . . . ‘[S]o long as the prosecutor has probable cause . . . the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in [the prosecutor‘s] discretion.‘” (second alteration in original) (quoting Wayte v. United States, 470 U.S. 598, 607 (1985))). Prosecutorial discretion extends to the process of plea bargaining. See State v. Estrada, 2001-NMCA-034, ¶ 20, 130 N.M. 358, 24 P.3d 793 (“[A] criminal defendant has no constitutional right to a plea bargain, and the decision whether to offer a plеa bargain is a matter within the prosecutor‘s discretion.“); State v. Barnett, 1998-NMCA-105, ¶ 22, 125 N.M. 739, 965 P.2d 323 (describing a prosecutor‘s discretion in plea bargaining as “tremendous“).
{100} The prosecutorial discretion to choose, for each particular case, the actual charges from among those potentially available “rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.” Wayte, 470 U.S. at 607. Indeed, the prosecution‘s authority in this regard is founded, among
{101} The district court judge here raised issues pertaining to countywide prosecutorial plea policy by interrogating an assistant district attorney on matters entirely unrelated to Defendant. The judge raised issues of plea offers and the backlog of court cases and ultimately issued an order dismissing the case which blamed the delay on “prosecutors who have worked in Colfax County over the last five years or more” for creating an “untenable bottleneck” without regard for the “administration of justice.” This attempt by the judiciary to steer prosecutorial practice violates the constitutional safeguard provided by the separation of powers, an outcome now endorsed by the majority in this case.
{102} We are likewise walking a dangerous line when judges get involved in plea negotiations, comment on a case before it is tried, and comment on whether a plea offer is good or not. Not only is this not a proper basis for a finding that the state is operating under an alleged plea policy, it is improper commentary from a district
{103} Application of a specific prosecutorial policy in a case, when in evidence, may indeed be weighed against the state. However, the majority takes this too far by permitting a broad prosecutorial plea policy to factor into a speedy trial analysis. We cannot concur in an opinion that opens the door to the judiciary improperly commenting on plea deals and curtailing prosecutorial discretion.
4. Defendant‘s role in the reasons for delay factor
{104} The majority abrogates a broad swath of cases by concluding that the reasons-for-delay inquiry must “center on the length and degree of delay at the hands of the
{105} The majority would have courts confine analysis of a defendant‘s actions to our assertion-of-the-right inquiry. Maj. op. ¶ 48. The majority relies on Barker and Serros for this conclusion, but it ignores the progeny of Barker and even the underlying rationale of Serros. Maj. op. ¶ 48. When the United States Supreme Court first announced in Barker that it was adopting a new approach to the speedy trial inquiry, it described the approach as a balancing test in which “the conduct of both the prosecution and the defendant are weighed.” 407 U.S. at 530. Later, in Brillon, the United States Supreme Court clarified that asking “‘whether the government or the criminal defendant is more to blame for the delay,‘” is necessary to avoid rewarding the use of delay as a defense strategy. 556 U.S. at 90 (brackets omitted) (quoting Doggett v. United States, 505 U.S. 647, 651 (1992)). The Court further provided that “delay caused by the defense weighs against the defendant.” Id. In Serros, this Court cited both
{106} Excluding the defendant‘s behavior entirely results in the absurdity that intentional delay by a defendant could not be weighed against a defendant. This approach also cements the collapse of the second factor into the first by removing any possibility that the second factor could be balanced based on the state‘s and defendant‘s actions. Instead, sufficient delay weighs the first factor against the state, and courts may look only to the state‘s conduct for the second factor. When combined with the holding that administrative delay can be construed as heavily
{107} According to our analysis, twenty-seven-and-a-half months of delay weigh against the State as resulting primarily from a congested docket and other administrative reasons, four months weigh against Defendant, and five-and-a-half months weigh against neither party. Because the reasons for delay are weighed more heavily against the state as the length of the delay increаses, we would weigh this factor moderately against the State. There is nothing in the record to indicate that the State at any point intentionally delayed trial in this case, and there is nothing in the record to indicate that the State failed to take steps to move the case forward. The entirety of the State‘s delay is properly classified as administrative, mostly due to a congested docket. A delay due to a congested docket does not weigh heavily against the state. See, e.g., State v. Zurla, 1990-NMSC-011, ¶¶ 14, 16, 109 N.M. 640, 789 P.2d 603; Barker, 407 U.S. at 531. The Barker Court acknowledged that delays are inevitable in some cases and, for that reason, held that administrative delays, including those due to congested dockets, should weigh less heavily against the state. Id. at 522 (“The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.” (internal quotation marks and citation omitted)); id. at 531 (“A more neutral reason [for delay] such as negligence or overcrowded courts should be
C. Assertion of the Right
{108} The third Barker factor considers a defendant‘s assertion of the right to a speedy trial, assigning weight based on “‘[t]he timeliness and vigor with which the right is asserted.‘” Serros, 2016-NMSC-008, ¶ 76 (quoting State v. Garza, 2009-NMSC-038, ¶ 32, 146 N.M. 499, 212 P.3d 387). “The frequency and force of the objections can be taken into account in considering the defendant‘s assertion, as well as whether an assertion is purely pro forma.” State v. Ochoa, 2017-NMSC-031, ¶ 41, 406 P.3d 505 (citing Barker, 407 U.S. at 529). “Pro forma assertions are sufficient to assert the right, but are given little weight in a defendant‘s favor.” Id. (citing State v. Urban, 2004-NMSC-007, ¶ 16, 135 N.M. 279, 87 P.3d 1061).
{109} Here, Defendant made six total assertions of his right to a speedy trial during the thirty-six months of delay. First, defense counsel included a demand for a speedy trial in his initial appearance in magistrate court. This was a pro forma demand, the kind which most defense attorneys include in their entry of appearance in every case. Next, Defendant made an oral demand at his arraignment, asking that the case be classified as simple and that trial be scheduled as soon as possible. Then, on July 15, 2020, one year after Defendant was arraigned, he filed his “Second Demаnd for
COMES NOW, the Defendant BRYAN SCHUSTER, by and through his attorney, Ben. A Mondragon, and hereby request a second [sic] demand for a speedy trial as guaranteed to him by the Constitution of the United States and by the State of New Mexico Constitution in the above – entitled and numbered case.
{110} These demands are pro forma. There is no argument, no factual basis for the demand, no explanation as to why he wanted a speedy trial, no discussion of how he was being prejudiced by the delay, and no citation to law beyond the vague assertion of his constitutional right to a speedy trial. While each of these demands was alone sufficient to assert the right, they did not, even taken together, carry such force that we would weigh this factor heavily against the State. See Gurule, 2025-NMSC-010, ¶ 39 (“‘[P]ro forma motions are generally afforded relatively little weight in this analysis.‘” (quoting Urban, 2004-NMSC-007, ¶ 16)); Serros, 2016-NMSC-008, ¶ 77 (holding that three pro forma assertions were “entitled to some weight“).
{112} Unlike Defendant‘s other demands, the motion was not pro forma. Defendant gave grounds in support of his motion including a summary of the proceedings thus far, citation to relevant caselaw, and analysis of the Barker factors. But it came on the eve of trial, after a docket call at which both parties said they would be ready to proceed to trial in three weeks. Gurule, 2025-NMSC-010, ¶ 39 (“[T]his Court recognizes that the closer to trial an assertion is made, the less weight it is given.” (internal quotation marks and citation omitted)).
{113} Ultimately, Defendant‘s assertions of the right were such that this factor should only weigh slightly against the State. This Court analyzes the assertion of the right factor in terms of the frequency and force of a defendant‘s assertion, consistent with Barker. Garza, 2009-NMSC-038, ¶ 32 (“[W]e accord weight to the ‘frequency and force’ of the defendant‘s objections to the delay.” (quoting Barker, 407 U.S. at 529)). Pro forma assertions, while sufficient to assert the right, only weigh slightly against the state. Similarly, assertions made on the eve of trial only weigh slightly against the state.
{114} Defendant made five pro forma demands for a speedy trial; then when it appeared his trial was finally going to occur, he filed his motion to dismiss. Because his first five assertions were merely pro forma and his motion was filed on the eve of trial, Defendant‘s assertion was not made with sufficient frequency and force to weigh this factor heavily against the State.
{115} While we agree that the weight of pro forma demands may increase when coupled with indications of an earnest assertion—rather than an exercise of gamesmanship—we do not agree with the majority‘s reframing of the third Barker factor. The majority seeks to establish a new rule in our speedy trial jurisprudence: “where the facts such as the force and frequency of the defendant‘s assertions establish the legitimacy of the defendant‘s stated desire for a speedy trial and where that conclusion is not refuted by contrary evidence, . . . the factor should weigh heavily in favor of the defendant.” Maj. op. ¶ 54 (emphasis added). This overrules our precedent in which pro forma assertions are given little weight. Ochoa, 2017-NMSC-031, ¶ 41; Gurule, 2025-NMSC-010, ¶ 39. It also eschews the point that, to
{116} The majority‘s decision to change from assigning little weight to pro forma assertions to assigning heavy weight to pro forma assertions—rather than moderate or somewhat heavy weight—is based on a law review article rather than any precedent by this Court. Maj. op. ¶ 54. The majority makes this change without citing any specific justification for departing from stare decisis. See Johnson, 1999-NMSC-028, ¶ 11.
{117} Where the heavy weight of the first Barker factor leads to a heavy weight of the second factor, a new metric which so easily grants heavy weight to the third factor is especially problematic because it permits defendants to avoid making a showing of particularized prejudice. See Garza, 2009-NMSC-038, ¶ 39. We would not so easily forego the particularized prejudice analysis, given that “some nonparticularized prejudice is not the type of prejudice against which the speedy trial right protects.” Id. ¶ 37 (brackets and internal quotation marks omitted). Prejudice is the central inquiry in speedy trial violations. See id. ¶ 12. Therefore, we cannot concur in an opinion which so dramatically lowers the bar for what is considered heavy weight for the other factors and thereby lowers the bar for when a showing of particularized prejudice is required.
D. Prejudice to Defendant
{118} The fourth and final Barker factor is prejudice to the defendant. This is the most important factor, as “[t]he heart of the right to a speedy trial is preventing prejudice to the accused.” Id. Barker identified three interests of defendants which the speedy trial right is meant to protect: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” 407 U.S. at 532. “[W]e weigh this factor in the defendant‘s favor only where the pretrial incarceration or the anxiety suffered is undue.” Garza, 2009-NMSC-038, ¶ 35.
{119} In cases where the other three Barker factors all weigh heavily against the state, we may presume prejudice and find in favor of the defendant. See Gurule, 2025-NMSC-010, ¶ 55 (“‘To find a speedy trial violation without a showing of actual prejudice, the Court must find that the three other Barker factors weigh heavily against the state.‘” (brackets omitted) (quoting State v. Samora, 2016-NMSC-031, ¶ 23, 387 P.3d 230)). However, if as here, the other three factors do not weigh heavily against the state, a defendant must make a showing of particularized prejudice. See Garza, 2009-NMSC-038, ¶¶ 35-36. To do so, the defendant must provide evidence of the prejudice against them. Id. Specifically, a defendant should
{120} As we explained above, the other three Barker factors in this case do not all weigh heavily against the State. Therefore, in order to prevail on his claim, Defendant must make a showing of particularized prejudice against him. He has not done so.
{121} Defendant was released on his own recognizance while this case was pending. In his briefing and motion to dismiss, Defendant argues that he suffered undue stress and anxiety and that he lost employment and housing opportunities. However, Defendant did not make a record of this prejudice. There was no evidence proffered or admitted during the hearing on the motion to dismiss, and no witnesses testified at the hearing. In fact, at the hearing, it was the district court judge who suggested, without prompting from defense counsel, that Defendant suffered “prejudice just beyond general anxiety that someone feels.” She based this prejudice on the conditions of release, which she set, and then questioned “how the average person is supposed to comply with that for a period of three years.” For his part, Defendant never made a motion for reconsideration of the conditions of release. There is simply nothing factual in the record that supports any alleged prejudice to Defendant beyond
{122} The only place the alleged prejudice appears is in Defendant‘s briefing and motion and in the comments of the district court judge. Because the arguments of counsel are not evidence, there is no evidence of prejudice against Defendant in this case. See Spearman, 2012-NMSC-023, ¶ 39. Without evidence of particularized prejudice and without the three other Barker factors weighing heavily against the State, Defendant‘s claim that his speedy trial right was violated fails.
E. Balancing
{123} Barker compels us to balance the four factors it identified and consider them “together with such other circumstances as may be relevant.” 407 U.S. at 533. As we explained above, the length of delay weighs heavily against the State, the reasons for delay weigh mоderately against the State, the assertion of the right weighs slightly against the State, but there was no evidence of any prejudice suffered by Defendant. Defendant was not in custody; his trial was delayed primarily by the district court due to its overcrowded docket. Additional delay resulted from the time it took to get results back from the drug lab and from the COVID-19 pandemic. Furthermore, it was not until the trial was finally set to go ahead as scheduled that
I am especially concerned about our judicial branch‘s aborting a criminal prosecution on speedy trial grounds after the dismissing court itself has approved all the requested discretionary continuances . . . . [The state was] first told that the court approved rescheduling the trial and then told that their case was unexpectedly given a death sentence and dismissed without a fair trial, not because they did not appear with a case on the court-scheduled trial date, but because the court exercised its judicial discretion to agree to a change of the trial date before telling them that, as a result of that change, they could no longer prosecute the case at all.
The speedy trial guarantee is undeniably important and may often be insufficiently protected. Our courts must find fair ways to enforce it and all other important rights. But in doing so, we should always try to resolve cases on their true merits where possible. . . . In taking speedy trial concerns into account before postponing trials, instead of afterward, judges can better protect the accused‘s right to a speedy trial without sacrificing society‘s interest in enforcement of its criminal laws.
Spearman, 2012-NMSC-023, ¶¶ 46-47 (Daniels, J., concurring).
II. CONCLUSION
{124} The circumstances of this case do not warrant dismissal on speedy trial grounds. There was no prejudice to Defendant shown, and while the delay was long, the reasons for the delay and the assertion of the right were not so egregious that this case should result in the “severe remedy of dismissal of the indictment.” Barker, 407 U.S. at 522. The majority here makes unnecessary changes to our speedy trial
DAVID K. THOMSON, Justice
BRIANA H. ZAMORA, Justice