Filed: September 14, 2000

STATE OF OREGON,

Respondent,

v.

SCOTT DEAN HARBERTS,

Appellant.

On automatic and direct review of the judgment of conviction and sentence of death imposed by the Circuit Court of Clackamas County.

Robert Morgan, Judge.

Argued and submitted March 10, 1999.

Eric Cumfer, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief were Sally Avera, Public Defender, and David Groom, Deputy Public Defender.

Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, Virginia L. Linder, Solicitor General, and David B. Thompson, Assistant Attorney General.

Before Carson, Chief Justice, and Gillette, Van Hoomissen, Durham, Leeson, and Riggs, Justices.*

LEESON, J.

The judgment of conviction is reversed, and the sentence of death is vacated. The case is remanded to the circuit court with instructions to dismiss the accusatory instrument with prejudice.

Van Hoomissen, J., dissented and filed an opinion.

*Kulongoski, J., did not participate in the consideration or decision of this case.

This is an automatic and direct review of a judgment of conviction and a sentence of death. Former ORS 163.150(1)(g) (1993), renumbered as ORS 138.012(1); ORAP 12.10(1). Defendant seeks reversal of his conviction on three counts of aggravated murder for the death of a young child. ORS 163.095; ORS 163.115. Defendant was arrested and placed in jail on July 14, 1989. His trial did not begin until July 12, 1994, nearly five years later. Under Article I, section 10, of the Oregon Constitution, the state must bring a defendant to trial "without delay." We hold that, under the circumstances of this case -- five years between arrest and trial during which defendant was being held in jail solely on the pending charges, many months of unreasonable delay during that period, and both personal prejudice and prejudice to the defense caused by the five-year delay -- the state violated Article I, section 10. Accordingly, we reverse the conviction, vacate the sentence of death, and remand the case to the trial court with instructions to dismiss the accusatory instrument with prejudice.

The victim in this case, a young child, lived with her father, the father's girlfriend, and the girlfriend's three young children. Defendant, a friend of the victim's father, also had lived in the house for approximately a year before the victim's death, where he was treated as a member of the family. During the evening of July 13, 1989, the victim's father purchased cocaine, and he and defendant cooked and smoked it together. Defendant, an admitted alcoholic, also consumed substantial amounts of alcohol that day and evening.

Defendant claims to have found the victim lying on the bathroom floor at approximately 3:00 a.m. on the morning of July 14, 1989, when he awakened to use the bathroom. Defendant then awakened the victim's father and the father's girlfriend. They both went to the bathroom, where they saw the victim. At defendant's urging, the father called 9-1-1. The father told the dispatcher that he was afraid that his daughter had swallowed some rubbing alcohol. While he waited for paramedics to arrive, the father hid the cocaine paraphernalia that he and defendant had used the evening before. Meanwhile, defendant and the father's girlfriend attempted to revive the victim. After the paramedics arrived, defendant continued to perform chest compressions on the victim while the paramedics attempted to administer oxygen. When the paramedics asked defendant to step aside so that they could work, he became very upset. One of the paramedics, Rawson, testified as follows:

"Q: You started to mention that a person that you ultimately have come to know was [defendant], you started to describe some of his activities immediately following your setting up the oxygen and his being asked to move aside. Could you go ahead and elaborate on that, if you would, please?

"A: Well, he several times stated things like: Don't let my baby die, and loudly. He was really agitated. And at the time I assumed he was the father, because the other -- the other man and lady were just kind of standing off on the side, not really too excited. They were just standing there. They kept telling him to settle down. So I just -- you know, at the time assumed that he was the father and he was quite upset, and rightfully so."

Defendant repeatedly interrupted the paramedics' work by telling them that he knew how to perform CPR and that they were doing it wrong. The victim's father testified that he "tried to help restrain [defendant] and * * * tried to calm him down." When the police arrived, the paramedics asked the police to get defendant out of the way. One of the officers told defendant to sit down in a chair and stay there. When defendant did not do so, and again tried to reach the victim, he was arrested for harassing a police officer. According to Rawson, the police arrested defendant "just to get him away from us."

The victim apparently had died sometime between 10:30 p.m. on July 13 and 1:30 a.m. on July 14, 1989. The cause of death was head trauma, smothering, or a combination of the two. She also had been raped or sodomized.

After they arrested defendant for harassment, the police took him to the Clackamas County Jail and placed him in a holding cell. Just before 6:00 a.m. on July 14, 1989, detectives told defendant that the victim was dead and began interviewing him. After defendant repeatedly had denied killing the victim, detectives asked him to take a polygraph examination, which he did. Detective Harvey, a polygraph intern, administered the examination, which lasted approximately four hours. Afterward, Harvey told defendant that she believed that he had killed the victim. Defendant responded that, although he did not remember killing the victim and could not believe that he would do something like that, if the polygraph had indicated he had killed her, he was "going along with what the polygraph said." Defendant made several other inculpatory statements, each of which referred to the results of the polygraph examination.

Defendant was indicted for murder on July 20, 1989. His trial was scheduled to begin on January 3, 1990. In November 1989, defendant moved to suppress all the inculpatory statements that he had made surrounding the administration of the polygraph examination. The trial court granted that motion on March 5, 1990. It found that defendant's blood alcohol level at the time when he made the statements was "approximately .16 to .18," that defendant had consumed cocaine, and that defendant had had "limited sleep and was fatigued" when he made the statements. The court also found that the first two-thirds of the polygraph examination were inconclusive, that Harvey had not given defendant "a complete and detailed explanation of what defendant's polygraph performance was," and that defendant probably would not have made the inculpatory statements if Harvey had not told him that the polygraph examination had led her to believe that he was the killer. The court concluded that, considering all the circumstances, defendant had not made the inculpatory statements voluntarily.

The court also found that "[a]ll statements by defendant at issue constitute polygraph evidence." Relying on State v. Lyon, 304 Or 221, 233-34, 744 P2d 231 (1987), and State v. Brown, 297 Or 404, 445, 687 P2d 751 (1984), the court held that such evidence was inadmissible as a matter of law. Finally, the trial court held that, as a factual matter, it could not "sanitize" or edit defendant's statements, because they were "inextricably linked and wedded to defendant's understanding of the results of the polygraph and to what Detective Harvey told defendant." For those reasons, the court granted defendant's motion to suppress.

After the trial court granted defendant's motion to suppress the inculpatory statements, the state announced that it planned to appeal the trial court's order. (1) Defendant then filed a motion for release pending the state's appeal. Defendant argued that, in light of the trial court's rulings regarding the inadmissibility of defendant's inculpatory statements, there was not sufficient evidence to support the findings under ORS 135.240 (2) that the proof was evident or the presumption strong that defendant was guilty. On March 5, 1990, the trial court denied defendant's motion for release. The court found "by clear and convincing evidence that the proof is evident and the presumption strong that the defendant is guilty." Accordingly, defendant remained in jail. On March 20, 1990, the state filed a notice of appeal from the trial court's suppression order.

In November 1991, the Court of Appeals reversed the trial court's suppression order. State v. Harberts, 109 Or App 533, 820 P2d 1366 (1991). It held that defendant had made the inculpatory statements voluntarily and that, as a matter of law, the statements could be edited to avoid any reference to the polygraph examination. Id. at 539-40.

Defendant sought review by this court and obtained two extensions of time to file his petition for review. The case was argued in September 1992, and, in February 1993, this court held that defendant had made the inculpatory statements voluntarily. However, it rejected the Court of Appeals' holding that, as a matter of law, defendant's statements could be edited in a manner that would eliminate reference to the polygraph examination without changing their meaning. State v. Harberts, 315 Or 408, 415, 848 P2d 1187 (1993). In April 1993, this court remanded the case to the trial court for it to determine whether it could eliminate defendant's references to the polygraph examination in his inculpatory statements without altering the meaning of those statements. Id. at 419.

On remand, the trial court again found that, as a factual matter, it could not edit defendant's inculpatory statements without changing their meaning, because the statements contained a "direct linkage to the polygraph." On May 27, 1993, the court again suppressed those statements. The state filed a timely notice of appeal from the second order of suppression. The state requested three extensions of time to file its opening brief, each time explaining that the Assistant Attorney General assigned to the case was working on other cases. Seven months later, on January 21, 1994, the state moved to dismiss the appeal, stating that it "no longer wishes to pursue this appeal." The Court of Appeals granted the state's motion and dismissed the appeal three days later.

Thereafter, the record reveals that nothing occurred to schedule the case for trial. On April 11, 1994, defendant wrote a letter to the State Court Administrator inquiring about the status of the case and explaining that he had been in jail awaiting trial since July 14, 1989. In response to defendant's letter, the trial court scheduled the trial for July 7, 1994.

On May 23, 1994, defendant moved to dismiss the charges against him for lack of a speedy trial. After a hearing on the motion, the trial court analyzed defendant's motion based on the factors that this court had identified in State v. Ivory, 278 Or 499, 564 P2d 1039 (1977): the length of the delay, the reasons for the delay, and prejudice to defendant. It found that the length of the delay -- almost five years -- "is extraordinary and shocking," and "unprecedented in the State of Oregon and perhaps unprecedented in the country as a whole." As to the reasons for the delay, the trial court found that the period between July 14, 1989, the date of defendant's arrest, and January 3, 1990, when the trial originally would have begun, was "a minimum amount of time" to bring an aggravated murder case to trial. The court also found that the state had a "legitimate and statutory right" to appeal the court's first suppression order and that the Court of Appeals' decision put defendant in the position of petitioning for review to this court "or never again [having] a legal opportunity to challenge the [d]ecision in the future." Therefore, the court concluded, the period of delay caused by the first interlocutory appeal "cannot be laid at the feet of the defendant but at the same time cannot be wholly assigned to the State."

The trial court found that, although neither of the state's interlocutory appeals was taken to vex or frustrate defendant's desire for a speedy trial, the state's decision to file the second appeal was "less understandable and less benign" than the first appeal, and that both the attorney in charge of the second appeal and the Solicitor General always had "'serious doubts' as to whether the appeal could be successful." According to the trial court, the decision to take that appeal was "a mistake in judgment." (3) The court also found that the conduct of the attorney in charge of the second appeal during the time that appeal was pending was "curious and questionable in light of the facts as [the attorney in charge] testified he knew them to be." According to the trial court, the seven months between when the state filed the second interlocutory appeal and when the state moved to dismiss that appeal was a period of "protracted indecision and unreasonably long under all the circumstances * * *."

With respect to prejudice, the trial court found that defendant had suffered actual personal prejudice by being held in jail for five years without a trial and by having aggravated murder charges against him unresolved for that period of time. However, the court also held that there was "no compelling and cogent evidence" suggesting that defendant's ability to defend himself had been impaired:

"The position by the defendant that defendant's ability to receive a fair trial because of the extraordinary delay has been impaired is a reach on the part of the defendant as solid evidence supporting that position is not apparent to this Court."

On June 17, 1994, the trial court denied defendant's motion to dismiss, reasoning:

"The consideration of all 'factors' including the circumstances mentioned above bearing on the question of prejudice have caused the Court to conclude that while the delay is extraordinary and shocking and has indeed prejudiced defendant Harberts by reason of his long pre-trial incarceration and the attendant anxiety and concern, this is counter-balanced by the nature of the charges against this defendant and the Court's Finding of February 28, 1990 [denying defendant's motion for release pending appeal because of a strong presumption of guilt] so as to render the prejudice defendant suffered to be of insufficient magnitude to warrant dismissal."

On June 28, 1994, after the case had been set for trial, defendant petitioned for a writ of habeas corpus in this court, which this court denied approximately a week later, on July 6, 1994. Defendant's trial began the following week. The jury convicted him of all three counts, and defendant was sentenced to death on October 27, 1994.

As a threshold matter, defendant assigns error to the trial court's denial of his motion to dismiss on speedy-trial grounds. The requirement for a speedy trial is both statutory and constitutional. ORS 135.747 requires that a defendant charged with a crime be brought to trial "within a reasonable period of time[.]" Article I, section 10, of the Oregon Constitution, provides, in part, that "justice shall be administered * * * without delay." The Sixth Amendment to the United States Constitution provides, in part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy * * * trial." In this case, defendant sought dismissal of the charges against him on both statutory and constitutional grounds.

Procedurally, this court usually examines statutory claims first. See, e.g., Ivory, 278 Or at 503 (so stating). However, if defendant were to prevail on his statutory claim, the remedy would be dismissal of the charges without prejudice, and the state would be able to prosecute him again, because the charges against him are felonies. See ORS 135.753(2) (dismissal of charge under ORS 135.747 does not bar another prosecution for same crime if crime charged is Class A misdemeanor or felony); State v. Emery, 318 Or 460, 471 n 18, 869 P2d 859 (1994) (same). Therefore, even if we were to hold in defendant's favor on his statutory speedy-trial claim, we still would have to address his constitutional claims, because the remedy for those claims is dismissal with prejudice. See Ivory, 278 Or at 505 (remedy for Article I, section 10, violation is dismissal with prejudice, same as for violation of Sixth Amendment right to speedy trial, citing Strunk v. United States, 412 US 434, 440, 93 S Ct 2260, 37 L Ed 2d 56 (1973)). Defendant must prevail on his state or federal constitutional speedy-trial claims to be entitled to the complete relief that he seeks. Under those circumstances, therefore, it is appropriate to address defendant's constitutional claims first. See Ivory, 278 Or at 503 (same rationale for addressing constitutional speedy-trial claim first).

We begin with defendant's claim under Article I, section 10, of the Oregon Constitution. See State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (court decides state constitutional issues before resorting to federal law). In analyzing that provision, we consider its specific wording, the case law surrounding it, and the historical circumstances that led to its creation. See Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992) (explaining methodology).

By its terms, Article I, section 10, of the Oregon Constitution requires that justice be administered "without delay," a term that traces to Magna Charta. Note, The Right to a Speedy Criminal Trial, 57 Col L Rev 846, 847 n 7 (1957). At the beginning of the twentieth century, this court stated that Article I, section 10, "declares that justice shall be administered without delay, which is substantially the same as guarantying to a defendant in a criminal action a speedy trial." State v. Breaw, 45 Or 586, 587, 78 P 896 (1904).

In the criminal law context, the requirement for a speedy trial is embedded deeply in the Anglo-American legal tradition:

"'The right of all persons held on a criminal charge, to a speedy and impartial trial, has been guaranteed from the earliest times to the English people, first by the Magna Charta and the petition of rights * * *. The * * * right has been declared in most of the constitutions of the American states, and also in the sixth amendment to the federal constitution.'"

State v. Lee, 110 Or 682, 685, 224 P 627 (1924) (quoting Freeman, 41 Am Dec 604). The historical reason for the speedy-trial requirement is prevention of prolonged pretrial incarceration. Sir Edward Coke's commentaries on Magna Charta, for example, explained that English judges did "'not suffer[] the prisoner to be long detained, but at their next coming have given the prisoner full and speedy justice * * * without detaining him long in prison.'" See Klopfer v. North Carolina, 386 US 213, 224, 87 S Ct 988, 18 L Ed 2d 1 (1967) (quoting Coke, The Second Part of the Institutes of the Laws of England 43 (Brooke, 5th ed, 1797)). To Coke, prolonged pretrial incarceration not only would have been contrary to English law and custom, it would have been "an improper denial of justice." Id.; see also Note, The Lagging Right to a Speedy Trial, 51 Va L Rev 1587, 1594 (1965) (requirement of trial without delay protects defendants from "interminable pretrial imprisonment").

Colonial constitutions mandated trial "without delay" beginning with the Virginia Declaration of Rights of 1776, which phrased the requirement as a "speedy trial." Bernard Schwartz, 1 The Bill of Rights: A Documentary History, 234 (1971). The Kentucky Constitution of 1799, and the Ohio Constitution of 1802, guaranteed that "right and justice [be] administered without denial or delay." Charles Kettleborough, 1 Constitution Making in Indiana xx, 86 (1916). The Indiana Constitution of 1816 took its "substance and phraseology" from the Kentucky and Ohio Constitutions. Id. at xx. The Indiana Constitution of 1851 rephrased the requirement as follows: "Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay." Id. at 297-98.

The Indiana Constitution of 1851 was "the chief model for substance and phraseology" of the Oregon Constitution that was adopted in 1857. Charles Henry Carey, ed., The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857, 28 (1926). The committee on the Bill of Rights submitted the text of Article I, section 10, to the convention as Article I, section 12. Id. at 120. There is no record of any discussion of the phrase "without delay." See id. at 310 (noting adoption without comment).

This court long has held that Article I, section 10, contains a "command * * * that justice shall be administered 'without delay[.]'" State v. Clark, 86 Or 464, 471, 168 P 944 (1917). That command is addressed to the prosecution and to the court. State v. Crosby, 217 Or 393, 402, 342 P2d 831 (1959). The state must not violate the constitutional speedy-trial mandate. State of Oregon v. Kuhnhausen, 201 Or 478, 512, 266 P2d 698, on reh'g 272 P2d 225 (1954).

Although there is "no general principle that fixes the exact time within which a trial must be had" to satisfy the requirement of Article I, section 10, Kuhnhausen, 201 Or at 492, the constitutional mandate means that "there shall be no unreasonable delay after a formal complaint has been filed against the defendant." State v. Vawter, 236 Or 85, 90-91, 386 P2d 915 (1963) (emphasis added). That requirement serves both a defendant's interest in a speedy trial and the public's interest in the prompt administration of justice. See Brown, 297 Or at 441 (delay in administration of justice a factor in determining admissibility of polygraph evidence). Whether the state has violated the constitutional mandate depends on the circumstances of each case. Kuhnhausen, 201 Or at 536. Pretrial imprisonment in connection with the pending charges "shortens the constitutionally permissible measure of delay." Haynes v. Burks, 290 Or 75, 83, 619 P2d 632 (1980); see also Vawter, 236 Or at 91 (even incarceration for unrelated offenses does not relieve state of speedy-trial obligations). (4)

Historically, the test that this court used to resolve speedy-trial claims was whether the process was "free from vexatious, capricious and oppressive delays, created by the ministers of justice * * *." Clark, 86 Or at 471 (citations omitted). In 1977, this court held that, consistent with that historical test, it would follow the same analysis that the United States Supreme Court had adopted in Barker v. Wingo, 407 US 514, 92 S Ct 2182, 33 L Ed 2d 101 (1972), to resolve speedy-trial claims under the Sixth Amendment to the United States Constitution. Ivory, 278 Or at 504.

Under Barker, the analysis begins with the length of the delay. Delay that is "presumptively prejudicial" is a "triggering mechanism" for inquiry into three other factors: whether the defendant asserted the right to a speedy trial, the reasons for the delay, and prejudice to the defendant. Barker, 407 US at 530. The Barker court rejected the argument that a defendant who fails to demand a speedy trial waives the right to a speedy trial. Id. at 528. Instead, it held that a defendant's failure to assert the right to a speedy trial is "one of the factors to be considered in an inquiry into the deprivation of the right." Id.

With respect to the reasons for the delay, the Barker court held that different weights should be assigned to different reasons. For example, a deliberate attempt by the government to delay a trial to hamper the defense weighs heavily against the government, while neutral reasons weigh less heavily. Id. at 531. However, even neutral reasons for delay must be weighed against the government, because "the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Id. (5)

With respect to prejudice to the defendant, the Barker court explained that such prejudice is to be assessed in light of the interests that the speedy-trial requirement was designed to protect:

"This Court has identified three such interests: (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. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown."

Id. at 532. The "prejudice to defense" factor has proved controversial in United States Supreme Court jurisprudence. (6) Nonetheless, the Supreme Court continues to apply the Barker framework in cases involving speedy-trial claims that are brought under the Sixth Amendment. See Doggett v. United States, 505 US 647, 112 S Ct 2686, 120 L Ed 2d 520 (1992) (applying Barker methodology.)

This court has held that delay in and of itself may be sufficient to establish a speedy-trial violation if the delay is so long "that the thought of ordering [a] defendant to trial 'shocks the imagination and the conscience,'" Vawter, 236 Or at 96 (quoting United States v. Chase, 135 F Supp 230, 233 (ND Ill 1955)), or if the delay is caused purposely to hamper the defense, Ivory, 278 Or at 506. Short of those circumstances, however, this court considers the other factors. (7) If a defendant has been imprisoned for a long period awaiting trial, or if the government has caused the delay in bad faith, then prejudice is "obvious." Ivory, 278 Or at 508 (quoting Dickey v. Florida, 398 US 30, 53, 90 S Ct 1564, 26 L Ed 2d 26 (1970)). If a witness dies or disappears during the delay, the prejudice also is "obvious." Id. at 508 (quoting Barker, 407 US at 532). In cases in which inquiry into impairment of the defense is required, a defendant needs to show only that the delay caused a "reasonable possibility of prejudice" to the ability to prepare a defense. Id. at 508. (8)

Although this court endorsed the Barker analysis in Ivory, it subsequently acknowledged that not all the Barker analysis is appropriate for evaluating claims under Article I, section 10. In State v. Dykast, 300 Or 368, 375 n 6, 712 P2d 79 (1985), for example, this court explained that it had been "mistaken" in adopting the requirement that a defendant demand a speedy trial. That is so because, as noted, the requirement that a defendant be brought to trial "without delay" is not a "right" of a criminal defendant. Rather, it is a mandatory directive to the state. See Clark, 86 Or at 471 (so stating). Accordingly, the burden to proceed promptly is on the state. Vawter, 236 Or at 87. Because Article I, section 10, does not guarantee an individual a "right" to a speedy trial, the second Barker factor is inapplicable under the Oregon Constitution. Emery, 318 Or at 468 n 13; State v. Mende, 304 Or 18, 21, 741 P2d 496 (1987); Dykast, 300 Or at 375 n 6. (9)

This court also has declined to follow the federal practice of balancing the conduct of the defendant against the conduct of the state in evaluating speedy-trial claims. Mende, 304 Or at 22. Rather, this court considers all the relevant factors, Haynes, 290 Or at 81, and assigns "weight" to them, Mende, 304 Or at 24. The length of delay affects the relative weight of each factor:

"the longer the state unjustifiably delays a trial, the more heavily the 'reasons for delay' factor weighs in favor of the defendant. Similarly, the longer the defendant must endure pretrial incarceration or anxiety and other forms of personal prejudice, the more the 'prejudice to defendant' factor weighs in the defendant's favor. * * * Obviously, length of delay also may be a factor in assessing a defendant's claim that the passage of time has dimmed witnesses' memories or made other evidence unavailable."

Mende, 304 Or at 24 (citation omitted). Moreover, pretrial imprisonment shortens the constitutionally permissible measure of delay, even when that imprisonment results from denial of pretrial release in a murder case. Haynes, 290 Or at 83. In that regard, we note that the trial court in this case held that its finding of February 28, 1990 -- that the presumption that defendant was guilty and would not be released pretrial -- "counter-balanced" the "extraordinary and shocking" delay in this case. That was error because, as noted, Oregon courts do not engage in a balancing of the speedy-trial factors, and pretrial incarceration shortens, rather than counter-balances, the constitutionally permissible measure of delay. Haynes, 290 Or at 81, 83.

To summarize: Article I, section 10, imposes on the state a mandatory directive to bring a defendant to trial "without delay." Determining whether the state did so is a fact-specific inquiry that requires the court to examine the circumstances of each particular case. Under our present-day jurisprudence, speedy-trial claims are guided by considering the length of the delay and, if it is not manifestly excessive or purposely caused by the government to hamper the defense, the reasons for the delay, and prejudice to the defendant. Prolonged pretrial imprisonment, even if it is caused by the trial court's finding that the defendant is not entitled to release pretrial because of a strong presumption of guilt, shortens the constitutionally permissible measure of delay. With that framework in mind, we turn to the circumstances of this case, beginning with the length of the delay.

The pretrial delay in this case was two days short of five years. The length of the delay after an indictment has been filed not only triggers inquiry into the other factors, it remains an element of the inquiry in the examination of the reasons for the delay and prejudice. Mende, 304 Or at 24; accord Doggett, 505 US at 651-52 (uncustomary delay triggers inquiry into other factors and contributes to presumption that pretrial delay caused prejudice to accused). The state concedes that the five-year delay in this case is "more than sufficient" to trigger inquiry into the reasons for that delay. We agree. The state identifies no cases, and we have found none, involving such a long period of pretrial delay where the defendant was held in jail awaiting trial solely in connection with the pending charges. However, the delay in this case was not so manifestly excessive that we may ignore the other factors. Ivory, 278 Or at 506. Cf. Chase, 135 F Supp at 233 (criminal charges dismissed because of 20-year delay before trial). We consider the other factors in turn, beginning with the reasons for the delay.

Defendant argues that "the lion's share of the delay was for the [state's] appeals which were ultimately unsuccessful, unduly lengthy, and negligently handled." He contends that the state's second interlocutory appeal was "especially weak" and added almost a year to an already unnecessarily long pretrial delay. The state responds that, under ORS 138.060(3), it had a right to take both interlocutory appeals and that "none of the time taken up in pretrial appeals should be considered" in analyzing a speedy-trial claim under Article I, section 10. The state reasons that the pretrial delay caused by the appeals in this case is "so benign as to exclude that period from the speedy-trial analysis."

The state's argument reduces to the assertion that, even when a defendant has been incarcerated pretrial, the state's statutory right to take an interlocutory appeal frees it from the constitutional mandate of Article I, section 10. For the state to prevail on that argument, this court would have to hold that the state's statutory right to appeal from a pretrial suppression order either defines or supercedes the constitutional command in Article I, section 10. In Kuhnhausen, this court rejected a similar argument.

Kuhnhausen involved a question of the meaning and application of Article I, section 10, in relation to the speedy-trial statute, former ORS 134.120 (1953), renumbered as ORS 135.747. 201 Or at 512. The state had argued that the statute, which was enacted contemporaneously with the Oregon Constitution, constituted the legislative construction and definition of Article I, section 10. This court held that the statute "is not a 'definition' of the constitutional provision * * *." Id. at 516. The court explained that determining whether a trial is a speedy trial is a judicial question that "should not be lightly whittled away by any rule which recognizes the power of the legislature to authoritatively construe the constitution." Id. at 517. The same reasoning is applicable here.

When the Oregon Constitution was adopted, and for more than a hundred years thereafter, the state had no right to take an interlocutory appeal from an order of suppression. The legislature enacted ORS 138.060(3) granting such a right in 1969. See Or Laws 1969, ch 529,