Rel: November 17, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 

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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2023-2024

_________________________

SC-2023-0146

_________________________

Ex parte State of Alabama

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF 

CRIMINAL APPEALS 

(In re: Nathaniel Dennis 

v. 

State of Alabama) 

(Houston Circuit Court: CC-12-163; 

Court of Criminal Appeals: CR-18-1211)

MITCHELL, Justice.
SC-2023-0146

2

This case stems from a cold-case murder that took place decades 

ago. On a Saturday night in 1981, an armed robber broke into a gas 

station where Russell Earnest Douglas was working, shot him several 

times, robbed the station, and fled. Douglas's murderer eluded capture 

for decades. Then, some 30 years later, forensic scientists retested DNA 

evidence found at the crime scene and turned up a match to the 

respondent here, Nathaniel Dennis, who was serving a 600-year sentence 

in Virginia for an unrelated crime. In 2011, a Houston County grand jury 

indicted Dennis for the murder of Douglas, and he was transferred to 

Alabama to stand trial. In 2019, after a series of pretrial delays, Dennis 

was convicted of murder made capital because it was committed during 

a burglary. 

Dennis appealed, arguing that the delay between his indictment 

and trial violated his right to a speedy trial. The Court of Criminal 

Appeals agreed, holding that the over-eight-year period between 2011 

and 2019 required the trial court to "presume" that the delay prejudiced 

Dennis's liberty interests -- even though Dennis had not put forward any 

affirmative evidence of prejudice and likely could not have done so 
SC-2023-0146

3

because he was already serving a 600-year sentence in Virginia. Dennis 

v. State, [CR-18-1211, July 8, 2022] ___ So. 3d ___ (Ala. Crim. App. 2022).

That was error. As this Court and the United States Supreme 

Court have made clear, the speedy-trial inquiry turns on how much delay 

has been caused by the government, not the bare amount of time between 

the indictment and trial. In this case, the portion of the delay caused by 

government negligence falls well short of the amount needed to justify a 

presumption of prejudice. Absent that presumption, Dennis's speedytrial claim fails. We therefore reverse the judgment below and remand 

for consideration of the other arguments that Dennis raised in his appeal. 

Facts and Procedural History

Russell Earnest Douglas was brutally murdered on September 26, 

1981, while he was working a late shift as a gas-station clerk in Dothan. 

The assailant shot Douglas several times, ransacked and robbed the 

station, and fled. Douglas -- who was still alive, though only barely, when 

police arrived -- told officers that his assailant had been a black male 

wearing a stocking cap. Douglas was then transported to a nearby 

hospital, where he eventually died. Meanwhile, the officers located a 

stocking cap at the scene of the crime, which they determined belonged 
SC-2023-0146

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to Douglas's assailant. The cap had a few strands of black hair embedded 

in the fabric, but initial attempts to test that hair for DNA were fruitless, 

with forensic analysts concluding that the sample was insufficient to 

produce useful results. 

Many years later, between 2010 and 2011, forensic scientists 

reexamined the strands of hair using updated technology and were able 

to extract a viable DNA profile from two of the hairs. The DNA on each

hair turned up a match to Nathaniel Dennis, who was then serving a 600-

year sentence in Virginia for a similar crime -- this time involving the 

burglary of a newspaper facility -- in which the premises of the facility

had also been ransacked and during which the victim had also been

robbed and shot multiple times. See Dennis v. Commonwealth, No. 1285-

98-1, Oct. 19, 1999 (Va. Ct. App. 1999) (not reported in South Eastern 

Reporter). 

After considering the newly discovered DNA evidence, a grand jury 

indicted Dennis for Douglas's murder on May 4, 2011. The governors of 

Virginia and Alabama then reached an agreement to transfer Dennis to 

this State so that he could stand trial in Houston County. Owing to a 

series of delays, however, Dennis's trial did not begin until June 2019 --
SC-2023-0146

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over eight years after his indictment. Near the onset of trial, Dennis 

moved to dismiss the case against him based on speedy-trial grounds, but 

the trial court denied that motion. The case proceeded to trial, and, on 

June 17, 2019, a jury found Dennis guilty of murder made capital because 

it was committed during a burglary. The trial court sentenced Dennis to 

life in prison without the possibility of parole.

Dennis appealed, arguing that: (1) the delay between his 

indictment and trial violated his Sixth Amendment right to a speedy 

trial; (2) the trial court improperly allowed the admission of an evidence 

label and certain forms that, he says, contained inadmissible hearsay; (3) 

Douglas's last words were improperly admitted into evidence as a dying 

declaration; (4) Douglas's death certificate was improperly admitted into 

evidence; and (5) the trial court erred in denying Dennis's motion for a 

judgment of acquittal. 

The Court of Criminal Appeals accepted Dennis's first argument 

and, on that basis, reversed the judgment of the trial court, vacated 

Dennis's conviction and sentence, and dismissed Dennis's indictment 

with prejudice. Dennis, ___ So. 3d at ___. The court did not address 

Dennis's four alternative arguments. 
SC-2023-0146

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The opinion setting forth the court's judgment was joined in full by

only one judge, with the other four judges concurring in the result only. 

The judges who concurred in the result did not write separately on 

original submission, but two of them did sign a special concurrence on 

application for rehearing to explain the reason for their votes on original 

submission. See Dennis, ___ So. 3d at ___ (McCool, J., concurring 

specially on denial of rehearing, joined by Minor, J.). As discussed below, 

that special concurrence makes clear that certain dispositive aspects of 

the reasoning of the opinion on original submission below were joined by 

a majority of the court. 

The opinion began by explaining that the test from Barker v. 

Wingo, 407 U.S. 514 (1972), governs any inquiry into whether a 

defendant's speedy-trial rights have been violated. That test, the opinion

explained, "' considers the following factors: (1) the length of the delay; 

(2) the reasons for the delay; (3) the defendant’s assertion of his or her 

right to a speedy trial; and (4) the prejudice to the defendant.'" ___ So. 

3d at ____ (quoting State v. Pylant, 214 So. 3d 392, 394-95 (Ala. Crim. 

App. 2016)). The first factor operates both as part of the overall balancing 

test and as a threshold inquiry: unless there is a significant delay, then 
SC-2023-0146

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"'there is no necessity for inquiry into the other factors.'" Ex parte 

Walker, 928 So. 2d 259, 264 n.6 (Ala. 2005) (quoting Barker, 407 U.S. at 

530). 

The opinion below determined -- and the State does not dispute at 

this stage -- that all of the first three factors, including the threshold 

factor, favor Dennis to at least some degree. First, the opinion concluded 

that the length of the delay exceeded Barker's one-year threshold. ___ 

So. 3d at ___.

Second, the opinion concluded that the reason for at least part of 

that delay was the State's negligence, and negligence is weighed against 

the State -- though much less so than strategic or deliberate delay. In 

reaching this conclusion, the opinion broke down the entire time frame 

from Dennis's indictment to his trial into eight discrete periods and then 

analyzed whether each period could be attributed to the State: 

"The delay in this case can be divided into eight different time 

frames, each with different reasons for the delay:

"(1) From May 4, 2011, when Dennis was 

indicted, until January 25, 2012, when he 

was transferred from prison in Virginia to 

Houston County to face the capital-murder 

charge. ... [T]he record on appeal does not 
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reflect why it took nine months to return 

Dennis from Virginia ....

"(2) From January 25, 2012, until August 20, 

2013, when Dennis filed his first motion for 

a speedy trial and requested a trial date. 

During this time, one judge recused himself 

from the case and the second judge set 

motion deadlines and ordered at least one 

status conference in the case. This 17-month 

period involved ordinary procedural 

occurrences in a case of this nature and this 

delay was justified or, at worst, negligent.

"(3) From August 20, 2013, until September 16, 

2015, when this case was originally set for a 

suppression hearing. ... 

"... [T]his period was partially justified, 

but a majority of this two-year delay should 

be regarded as negligent delay due to the 

trial court's failure to set the [suppression] 

hearing within a reasonable time after the 

motion contesting the admissibility of DNA 

evidence was filed.

"(4) From September 16, 2015, until November 2, 

2015, when the DNA suppression hearing 

was eventually held. This seven-week delay 

was caused by the [prosecutors'] failure to 

meet the trial court's deadline for producing 

certain documents .... [T]his delay weighs 

against the State as a negligent delay.

"(5) From November 2, 2015, until February 5, 

2016. This period was the time given to both 

parties to file briefs in support of their 

position on the DNA suppression issue. 

Although this was a reasonable time to allow 
SC-2023-0146

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Dennis and the [prosecutors] to file the 

necessary arguments, the due date was well 

over two years after the suppression motion 

had been filed. Again, this delay weighs 

against the State ....

"(6) From February 5, 2016, until April 18, 2016. 

Both parties were ordered to turn in briefs by 

February 5, 2016. Dennis complied with the 

trial court's order, but the [prosecutors]

failed to file a brief as ordered. ... This 10-

week delay was clearly negligent delay by 

the State ....

"(7) From April 18, 2016, until the first trial 

setting on June 11, 2018. Neither the 

[prosecutors] nor Dennis contributed to this 

delay. ... At least one year of this delay, in 

particular after the trial court denied 

Dennis's motion to suppress on March 13, 

2017, was attributable to the trial court and 

weighs against the State, but not as heavily 

as the delays caused by the [prosecutors']

action or lack of preparedness.

"(8) From June 11, 2018, until the case went to 

trial on June 10, 2019. ... [T]he [prosecutors]

filed a motion to continue to allow the 

[prosecutors] to do additional DNA testing. ... 

Although the [prosecutors] asserted that the 

new DNA tests could result in exculpatory 

evidence for Dennis, it is also clear that the 

[prosecutors] could have obtained a tactical 

advantage if the tests had further implicated 

Dennis. ... [T]his final delay was not a badfaith delay, but the [prosecutors were]

exceedingly negligent in failing to have the 

tests performed years earlier. Although this 

final delay weighs heavily against the State, 
SC-2023-0146

10

it is mitigated by the [prosecutors'] offer, 

which was accepted by Dennis, to depose any 

witnesses that Dennis requested while the 

additional DNA testing was being conducted.

..."

___ So. 3d at ____-____. 

In sum, the opinion classified roughly four and a half years (four 

years, seven months, and about three and a half weeks) -- a little over 

half of the eight-year-and-two-month total delay -- as attributable to 

some form of official negligence. Accordingly, the opinion found that, 

overall, the cause-for-delay factor weighed in Dennis's favor. Id. at ___.

Third, the opinion concluded that Dennis had acted with reasonable 

diligence in asserting his speedy-trial right, so that this factor also 

favored him. ___ So. 3d at ____. 

The opinion then turned to the final and most important Barker

factor: prejudice to the defendant. It noted that Dennis had put forward 

"no evidence" of "actual prejudice" and likely could not have done so given 

that: (1) Dennis had "acknowledge[d] that he would have been in prison 

in Virginia if he had not been in custody in Alabama" during the "entire 

eight years pending trial," ___ So. 3d at ____, and (2) there was no 

suggestion that any witnesses had died or that any evidence had gone 
SC-2023-0146

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stale during the delay between indictment and trial (as opposed to the 

much longer period between the commission of the crime and the 

indictment), id. at ____.

But even though Dennis had failed to establish any evidence of 

actual prejudice, the opinion concluded that he was nonetheless entitled 

to a presumption of prejudice under the United States Supreme Court's 

holding in Doggett v. United States, 505 U.S. 647 (1992). Doggett, as the 

opinion below explained, sets out an elaborate multifactor balancing test 

that specifies whether and how "prejudice [should] be presumed in 

circumstances when the delay is excessive." ___ So. 3d at ____.

" '"The United States Supreme Court in Doggett [v. 

United States, 505 U.S. 647 (1992),] used three hypothetical 

cases to demonstrate the accused's burden under the fourth 

Barker factor. The accused's burden 'of proof in each 

situation varies inversely with the [State]'s degree of 

culpability for the delay.' In the first scenario, where the state 

pursues the accused 'with reasonable diligence,' the delay --

however long -- generally is excused unless the accused 

demonstrates 'specific prejudice to his defense.' Thus, when 

the state acts with reasonable diligence in bringing the 

defendant to trial, the defendant has the burden of proving 

prejudice caused by the delay.

" '"The second situation recognized in Doggett involves 

bad-faith efforts by the state to delay the defendant's trial.

...'

" '"The third scenario recognized in Doggett involves 

delay caused by the state's 'official negligence.' Official 
SC-2023-0146

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negligence 'occupies the middle ground' between bad-faith 

delay and diligent prosecution. In evaluating and weighing 

negligent delay, the court must 'determine what portion of 

the delay is attributable to the [State]'s negligence and 

whether this negligent delay is of such a duration that 

prejudice to the defendant should be presumed.' The weight 

assigned to negligent delay 'increases as the length of the 

delay increases.' Negligent delay may be so lengthy -- or the 

first three Barker factors may weigh so heavily in the 

accused's favor -- that the accused becomes entitled to a 

finding of presumed prejudice. When prejudice is presumed, 

the burden shifts to the state, which must then affirmatively 

show either that the delay is 'extenuated, as by the 

defendant's acquiescence,' or 'that the delay left [the 

defendant's] ability to defend himself unimpaired.'"'"

___ So. 3d at ____ (citations omitted). 

The opinion found that "Dennis's case falls under the third Doggett

category of negligent delay" because "Dennis does not allege bad-faith 

efforts by the State to gain an unfair advantage based upon the delay." 

___ So. 3d at ____. The opinion then reasoned that the trial court was 

required to presume that the delay in this case prejudiced Dennis 

because the delay between his indictment and trial, like the delay in 

Doggett itself, "was over eight years" in total length. ___ So. 3d at ____. 

Based on this finding of presumed prejudice, the Court of Criminal 
SC-2023-0146

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Appeals reversed the judgment of the trial court and rendered judgment 

for Dennis. The State sought rehearing, which the court denied. 

In denying the State's rehearing application, two judges submitted 

a separate special concurrence to "explain [their] reasons for concurring 

in the result on original submission." They noted their frustration with 

the decision to grant Dennis relief, emphasizing: (1) the "complete lack of 

proof of any actual prejudice" to Dennis; (2) the "conclusive nature of the 

DNA evidence" against him; and (3) the "'fact that [Dennis] has suffered 

none of the harms that the [speedy-trial] right was designed to prevent.'" 

___ So. 3d at ____ (McCool, J., concurring specially on denial of rehearing, 

joined by Minor, J. (quoting Doggett, 505 U.S. at 659)). Nonetheless, they 

believed that they were compelled to overturn the trial court's judgment 

because, in their view, "United States Supreme Court precedent requires 

that prejudice should be presumed" in Dennis's case because, as in 

Doggett, the "delay was [approximately] eight and a half years" long. Id.

at ____.

Following the denial of rehearing, the State filed a petition for a 

writ of certiorari, asking this Court to consider whether "[t]he decision 

below conflicts with prior decisions of this Court and the U.S. Supreme 
SC-2023-0146

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Court because it presumed prejudice based on the entire post-indictment 

period rather than the period of delay caused by the State's negligence."

Petition at 6. We ordered an answer and briefs.

Standard of Review

Because the question presented to this Court "involves only issues 

of law and the application of the law to the undisputed facts," our "review 

is de novo." Walker, 928 So. 2d at 262.

Analysis

The decision below rests on a straightforward legal error. In its 

application of the second Barker factor (cause for delay), the Court of 

Criminal Appeals attributed only about four and a half years of the postindictment delay to official negligence; yet in assessing the fourth Barker

factor (prejudice), it based its presumption of prejudice on the eight-yearplus period of total delay. That reasoning conflicts with decisions from 

the United States Supreme Court and this Court, both of which have 

specified that prejudice should be presumed based only on those periods 

of delay that are attributable to the government. Since delay of less than 

five years is insufficient to support a presumption of prejudice in the 

absence of any aggravating factors, as this Court and courts across the 
SC-2023-0146

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country have consistently held, Dennis is not entitled to such a 

presumption. And without that presumption, his speedy-trial claim fails, 

as the trial court correctly determined. 

A. The Court of Criminal Appeals erred by presuming prejudice 

based on the entire post-indictment period, rather than only the 

portion of that period attributable to the State's negligence.

While the reasoning below was fractured -- with the main opinion 

on original submission joined by only a single judge -- a majority of the 

court agreed on one key point: the United States Supreme Court's 

precedent in Doggett compelled the court to grant Dennis relief because, 

the majority reasoned, the "delay in Doggett, like the delay in Dennis's 

case, was over eight years from the time of [the] indictment," and the 

Court in Doggett found a delay of the same length sufficient to presume 

prejudice. ___ So. 3d at ___; see also id. at ____ ("In this case, the delay 

of over eight years was excessive."); id. at ____ (McCool, J., concurring 

specially on denial of rehearing) (describing the relevant delay as an 

"eight-year" period); id. at ____ (McCool, J., concurring specially on denial 

of rehearing) (stating that the Doggett Court determined that prejudice 
SC-2023-0146

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was presumed because the "delay [in that case] was eight and a half 

years"). 

That was error. Both Doggett itself and this Court's post-Doggett

precedents have made clear that prejudice cannot be presumed based on 

the entire post-indictment period as such but, rather, only on whatever

subset of that period was caused by government misfeasance. See

Doggett, 505 U.S. at 657-58 (explaining that the Court's presumption of 

prejudice was based on the "6 years" long delay "attributable to the 

Government's negligence," rather than on the "81⁄2 years" long lag 

"between ... indictment and arrest"); Ex parte Anderson, 979 So. 2d 777, 

780, 783 (Ala. 2007) (noting that the total delay period was "three years," 

but explaining that only "25 months" of that period were attributable to 

the State's negligence, and finding that "the State's negligent delay of 

approximately 25 months" was not "so severe as to relieve Anderson of 

any responsibility to demonstrate at least some actual, as opposed to 

conjectural, prejudice"). 

The law on this point is so well established that Dennis does not 

even attempt to dispute it in his response brief. Instead, his arguments

before this Court take a different tack. Despite asserting below, at the 
SC-2023-0146

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rehearing stage, that the opinion below had "appropriately categorized"

each period of delay, see Dennis's brief in opposition to application for 

rehearing at 5, Dennis now argues that the opinion erred by attributing 

only four and a half years of the delay to official negligence. Instead, he 

argues, the opinion should have categorized every period not provably

caused by Dennis as negligent delay. 

The State contends that Dennis is estopped from taking this 

position after having successfully relied on the opposite position below. 

See Russell v. Russell, 404 So. 2d 662, 665 (Ala. 1981) ("The law is settled 

in Alabama that a party who has, with knowledge of the facts, assumed 

a particular position in a judicial proceeding is estopped from assuming 

a position inconsistent to the first one to the prejudice of an adverse 

party."). But even if Dennis were not barred from advancing this 

argument, it would fail. 

A finding of "negligent delay" requires a finding of negligence. That 

is true both in the obvious definitional sense and under controlling

precedent. Doggett itself emphasized that "pretrial delay is often both 

inevitable and wholly justifiable" because the "government may need 

time to collect witnesses against the accused, oppose his pretrial motions, 
SC-2023-0146

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or, if he goes into hiding, track him down." 505 U.S. at 656. In keeping 

with that understanding, Doggett held that delays are deemed justified 

so long as the State acts with "reasonable diligence" in bringing the 

defendant to trial. Id.; accord Walker, 928 So. 2d at 267 ("[W]here the 

state pursues the accused 'with reasonable diligence,' the delay --

however long -- generally is excused unless the accused demonstrates 

'specific prejudice to his defense.'" (quoting Doggett, 505 U.S. at 656)).

Dennis asks us to resist this straightforward conclusion. According 

to Dennis, the Supreme Court held in Barker that even "'neutral 

reason[s]'" for delay count as governmental "negligence" in the speedytrial context, so long as the delay was not provably caused by the 

defendant. Dennis's brief at 17 (quoting Barker, 407 U.S. at 531). 

But Dennis's argument on this point reflects a fundamental 

misreading of Barker. Here is the relevant language from Barker, in its 

full context:

"Closely related to length of delay is the reason the 

government assigns to justify the delay. Here, too, different 

weights should be assigned to different reasons. 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 
SC-2023-0146

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circumstances must rest with the government rather than 

with the defendant. Finally, a valid reason, such as a missing 

witness, should serve to justify appropriate delay."

407 U.S. at 531 (footnote omitted; emphasis added). 

As that context makes clear, Barker held that both overt 

prosecutorial negligence (such as authorities simply losing track of the 

case for the better part of a decade, as happened in Doggett) and other 

"more neutral" forms of State mismanagement, such as "overcrowded 

courts," can be considered against the government. 407 U.S. at 531

(emphasis added). The Court put overcrowding in the "government's 

fault" bucket because overcrowding is generally caused by the failure of 

state actors to take reasonable steps to ensure that trial courts have 

manageable dockets. So while court overcrowding might be "more" 

neutral than overt prosecutorial misfeasance, it is not entirely neutral 

and therefore weighs (lightly) against the State. In contrast, 

administrative pretrial delays that do not reflect any negligence -- such 

as the time necessary to locate a "missing witness" or to handle an 

unusually "complex" charge -- are not counted against the State at all, 

even though such delays are also not caused by the defendant. 407 U.S. 

at 531.
SC-2023-0146

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In keeping with these principles, appellate courts across the 

country have held that a delay does not trigger a presumption of 

prejudice unless the reasons for that delay reflect government negligence 

or other misconduct. See, e.g., United States v. Small, No. 22-1469, July 

7 (3d Cir. 2023) (not reported in Federal Reporter) (emphasizing that "a 

neutral reason" for delay "weighs against neither party" under Barker); 

United States v. Keith, 61 F.4th 839, 853 (10th Cir. 2023) (explaining

that "a truly neutral justification" does "not favor[] either side" in the 

Barker analysis and "cannot fairly be attributed to the government"); 

United States v. Snyder, 71 F.4th 555, 577-78 (7th Cir. 2023) (similar);

Vlahos v. State, 518 P.3d 1057, 1072 (Wy. 2022) (similar); In re Timothy 

C., 376 Md. 414, 433, 829 A.2d 1024, 1034 (2003) (emphasizing the longstanding rule that " '"a neutral reason" '" for delay is " '"chargeable to 

neither party" '" (citations omitted)).1

1It is no coincidence that many of these cases involve delays caused 

by the COVID-19 virus. These cases provide an especially salient

example of the way in which courts conduct the Barker analysis in the 

face of truly neutral delays. 

Under Dennis's theory, all COVID-related delays should count 

against the government, because none of those delays were caused by the 

defendant. But virtually every court that has considered that question 

has reached the opposite conclusion. See, e.g., United States v. Small, 
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Dennis does not even acknowledge these cases in his briefing. 

Instead, he contends that we are required to presume prejudice because, 

No. 22-1469, July 7, 2023 (3d Cir. 2023) (not reported in Federal 

Reporter); United States v. Keith, 61 F.4th 839, 853 (10th Cir. 2023); 

United States v. Snyder, 71 F.4th 555, 577-78 (7th Cir. 2023); United 

States v. Marquez, No. 21-30134, Nov. 10, 2022 (9th Cir. 2022) (not 

reported in Federal Reporter) (classifying COVID-related delays as 

"valid" under Barker, and therefore as weighing in favor of the State); 

State v. Adams, 364 Ga. App. 864, 868, 876 S.E.2d 719, 725 (2022) 

(refusing to weigh COVID-related suspensions of jury trials against 

either party); State v. Paige, 977 N.W.2d 829, 838 (Minn. 2022) ("[T]rial 

delays due to the statewide orders issued in response to the COVID-19 

global pandemic do not weigh against the State."); State v. Brown, 310 

Neb. 224, 237-41, 964 N.W.2d 682, 691-93 (2021) (holding that COVIDrelated delays count as "valid" delays under Barker); Ali v. 

Commonwealth, 75 Va. App. 16, 43, 872 S.E.2d 662, 675 (2022) (holding 

that pandemic-related delays fall within the third Doggett category of 

"'valid' reasons for delay that are not directly attributable to the 

government"); United States v. Campbell, No. 1:19-cr-25, Apr. 20, 2021 

(S.D. Ohio 2021) (not reported in Federal Supplement) (holding that "the 

COVID-19 pandemic, and the court system's efforts to minimize the 

public health impacts of that pandemic," constitute "valid reasons" for 

delay and therefore "'weigh in favor of the government'" (citation 

omitted)).

The only decision we know of that has reasoned differently is the 

Supreme Court of Vermont's opinion in State v. Labrecque, [No. 22-AP314, July 7, 2023] ___ A.3d ___ (2023), which found that COVID-related 

delays are technically "attributable to the State" under Barker but should 

be accorded "very little weight" in light of their non-negligent character. 

Id. at ___. Accordingly, the court held that such delays are insufficient 

to support a presumption of prejudice. Id. at ___. Thus, despite taking a 

different analytical approach, the Supreme Court of Vermont seems to 

ultimately agree with its sister courts' conclusion that non-negligent 

delays do not, by themselves, justify a presumption of prejudice.
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he says, our own precedent in Anderson "held that only '[d]elays 

occasioned by the defendant or on his behalf are excluded from the length 

of delay,'" Dennis’s brief at 23 (quoting 979 So. 2d at 781), and that our 

earlier precedent in Walker similarly held that "[j]ustified delay is 

likewise limited to 'delay for which the defendant is primarily 

responsible,'" Dennis’s brief at 22 (quoting 928 So. 2d at 265). 

Once again, Dennis mischaracterizes the cases on which he relies. 

In Anderson, this Court repeated the familiar principle that "[d]elays 

occasioned by the defendant or on his behalf are excluded from the length 

of delay," 979 So. 2d at 781, but we never held that those delays are the 

only types of delays that are excluded. By inserting the word "only" 

ahead of the quoted sentence, Dennis transforms a sufficient condition 

for exclusion into a necessary one and -- in doing so -- distorts the 

meaning of the passage. 

He repeats that mischaracterization when describing our holding

in Walker. Walker explained that justified delay "includes such 

occurrences as missing witnesses or delay for which the defendant is 

primarily responsible," 928 So. 2d at 265 (emphases added), but never 

held that justified delay is "limited" to the latter situation. In fact, 
SC-2023-0146

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Walker made clear that the opposite is true when it expressly listed

another example of justified delay. 

As Anderson and Walker illustrate, this Court has never held that 

prejudice must be presumed based on reasonable, non-negligent delays. 

Instead, we have long recognized, in keeping with United States Supreme 

Court precedent, that delays do not count against the State so long as the 

"'the state pursue[d] the accused "with reasonable diligence"'" during the 

relevant time frame. Anderson, 979 So. 2d at 783 (quoting Walker, 928 

So.2d at 267, quoting in turn Doggett, 505 U.S. at 656).

The upshot here is that "negligent delay" is just what it sounds like: 

delay caused by negligence. Turning back to the findings recited in the

opinion below, the only periods attributable to governmental negligence 

were: 

• an unspecified "partial[]" portion of the 2-year-and-27-day 

period between August 20, 2013, when Dennis filed his first 

speedy-trial motion, and September 16, 2015, when the court 

scheduled a pretrial hearing -- which we, in the interests of 

being maximally charitable to Dennis, treat as the full 2 years 

and 27 days for purposes of resolving this issue; 

• 1 month and 17 days given to the State to produce documents 

for the DNA suppression hearing;
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• 3 months and 3 days given to both parties to brief the DNA 

suppression issue;2

• 2 months and 13 days of extra time granted to the State to file 

a brief;

• 1 year of the period from April 18, 2016, to June 11, 2018, for 

various motions and rulings; and

• 1 year of time for additional DNA testing by the State.

___ So. 3d at ____-____.

When added together, these periods come to a little over four and a 

half years of arguably negligent delay. The remaining portion of the eight 

years and two months between Dennis's indictment and trial was, as the 

opinion below found, attributable to a variety of non-negligent factors, 

2While it does not affect the result in this case or our analysis below, 

we note for the sake of clarity -- and in the interest of avoiding future 

confusion -- that the opinion below mistakenly double-counted this 

period. Specifically, the opinion acknowledged that this roughly threemonth period "was a reasonable time to allow Dennis and the State to 

file the necessary arguments," but nonetheless went on to weigh that 

delay against the State because the due date for the briefs was almost

two years after Dennis had initially filed his motion to suppress. ___ So. 

3d at ____. The problem with that approach is that the opinion had 

already counted that same two-year delay against the State when it 

concluded that much of that delay was attributable to "the trial court's 

failure to set the hearing within a reasonable time." Id. at ____. Since 

everyone agrees that this period represented a reasonable amount of time 

to brief the suppression issue, only the delay preceding the briefing -- not 

the reasonable amount of time for the briefing itself -- can count against 

the State. 
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such as the time necessary to arrange and complete Dennis's transfer 

from Virginia to Alabama3 and an array of other routine and reasonable 

"procedural occurrences," including the recusal of one judge, the 

retirement of another, and the handling of dozens of motions, briefs, and 

objections, many if not most of which were filed by Dennis. ___ So. 3d at 

____. As the opinion below recognized, these delays represented either 

the "ordinary" workings of reasonably diligent courts, ___ So. 3d at ___,

or else were affirmatively occasioned by Dennis or on his behalf, id. at

____. In short, even under a calculation that is charitable to Dennis, the

total portion of delay caused by government negligence is less than five 

years. 

The five-year figure is significant because courts across the country, 

including this one, have consistently found negligent delays insufficient 

to relieve a defendant of his burden to demonstrate actual prejudice

3Dennis's unsupported assertion that the time necessary to 

complete this transfer should be attributed to the government is 

perplexing. Nothing in the record suggests that Dennis's transfer took 

an unusual or unreasonable amount of time relative to transfers for 

comparably dangerous prisoners. And the reason that this transfer had 

to take place at all lies with Dennis himself: had he not brutally attacked 

a man during an armed burglary in Virginia, he would not have been 

incarcerated in that jurisdiction and could have come to Alabama 

immediately to stand trial. 
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unless the "delay is five years or more."4 Walker, 928 So. 2d at 270

(collecting numerous federal cases); see also 5 Wayne R. LaFave et al., 

Criminal Procedure § 18.2(e) (4th ed.) (also collecting cases) ("[C]ourts 

'generally have found presumed prejudice only in cases in which the postindictment delay lasted at least five years,' except where the government 

was responsible for the delay by virtue of something beyond simple 

negligence." (footnotes and citations omitted)). Dennis does not challenge 

this body of caselaw, and we see no reason to reach a contrary result here. 

If anything, a presumption of prejudice based on a period less than 5

years would be especially inappropriate in this case, given that Dennis

was already serving a 600-year sentence for an unrelated crime and has 

not put forward an even superficially plausible theory as to how the delay

4Walker makes clear that, in some cases, the length of negligent 

delay required to presume prejudice may be "more" than five years. 928 

So. 2d at 270. That is particularly likely to be the case when "other 

circumstances" -- such as the defendant's incarceration for a different 

crime during the relevant period -- make such a presumption especially 

unreasonable. Barker, 407 U.S. at 533. But since the negligent delay in 

this case is well under five years, we need not address how much 

additional delay might be required to justify a presumption of prejudice 

in such circumstances. 
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between his indictment and trial could have prejudiced either his liberty 

interests or his ability to marshal a defense.5

B. Without a presumption of prejudice, Dennis's speedy-trial claim 

fails.

The absence of prejudice, either actual or presumed, is fatal to 

Dennis's speedy-trial claim. As the State points out -- and as Dennis does 

not refute -- it appears that no post-Doggett opinion from the United 

States Supreme Court, this Court, or the Court of Criminal Appeals has 

granted relief based on a speedy-trial claim without finding prejudice. 

Instead, courts have consistently denied speedy-trial claims absent either 

5The closest Dennis has come to putting forward such a theory is 

when he asserted below that four of the people he "'would have called in 

his defense passed away before he faced trial.'" ___ So. 3d at ____ (citation 

omitted). But Dennis alleged only that these people passed away 

between the night of the murder and his trial; he never alleged (as he 

would have needed to do to show prejudice) that they passed away 

between the indictment and trial, see id. at ___. That omission is 

compounded by another, equally significant deficiency, which is that 

"Dennis did not make any proffer to establish how the four individuals in 

question could have assisted his defense if the case had gone to trial 

earlier and if they had been able to testify." Id. at ___. On top of all that, 

"the conclusive nature of the DNA evidence" placing Dennis at the crime 

scene, in contradiction of his core defense claim -- which was "that he was 

not at the crime scene" at all -- makes it difficult to imagine how anything 

these individuals might have said could have swayed a reasonable jury.

___ So. 3d at ____ (McCool, J., concurring specially on denial of 

rehearing). 
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actual or presumed prejudice, even when the other factors weighed in the 

defendant's favor. See Walker, 928 So. 2d at 267, 277; see also State's 

brief at 47-48 (collecting dozens of similar cases from the Court of 

Criminal Appeals).

There is good reason for that consensus. Courts place immense

weight on the prejudice factor because that is the factor that most directly 

reflects the "core concern" of the Speedy Trial Clause: "impairment of 

liberty." United States v. Loud Hawk, 474 U.S. 302, 312 (1986). And 

while Barker's ad hoc balancing test leaves open the possibility that there 

could be circumstances in which the first three factors weigh so 

overwhelmingly in favor of the accused that prejudice becomes 

unnecessary, those circumstances are extraordinarily rare -- as 

evidenced by the dearth of decisions granting relief in the absence of 

either actual or presumed prejudice. 

In any event, no such extraordinary circumstances are present 

here. Even on the accounting of the opinion below, only a slight majority 

of the total eight-year delay can be attributed to the State, and none of 

that delay was attributable to anything more than simple negligence. We 

have never required a trial court to vacate a conviction in similar 
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circumstances, and Dennis offers us no reason to chart a new course now. 

His speedy-trial claim fails. 

Conclusion

The court below erred by presuming prejudice based on the entire 

period between Dennis's indictment and trial, rather than on the more 

limited period attributable to government negligence. And because the 

period attributable to government negligence is too short to presume 

prejudice -- and because Dennis has not put forward any evidence of

actual prejudice -- his speedy-trial claim fails. We therefore reverse the 

judgment below and remand the case to the Court of Criminal Appeals 

for it to address the remaining arguments raised in Dennis's initial 

appellate brief.

REVERSED AND REMANDED. 

Parker, C.J., and Shaw, Wise, Bryan, Stewart, and Cook, JJ., 

concur.

Sellers, J., concurs in the result.

Mendheim, J., recuses himself.