State v. Garcia-Castillo

No. 125,815 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. EFRAIN GARCIA-CASTILLO, Appellant. SYLLABUS BY THE COURT 1. The constitutional protection of a speedy trial attaches when one becomes accused and the criminal prosecution begins, usually by either an indictment, an information , or an arrest, whichever first occurs. A court generally counts the time between that origin point and the defendant's trial to calculate the length of delay in a constitutional speedy trial analysis. 2. While a Kansas prosecutor has no independent authority to compel extradition from a foreign country, the prosecutor does play an important initiating role. The state prosecutor responsible for the case initiates extradition by contacting the Department of Justice's Office of International Affairs (OIA) to discuss the possibility of seeking extradition, including governing treaties, chances for extradition, possible defenses, and likelihood of apprehending the fugitive. 3. A policy decision not to pursue extradition of suspects no longer living in the United States for any crime but murder, does not relieve the State, under the 1 constitutional speedy trial rubric, of its duty to exert reasonably diligent efforts to pursue a defendant, even an evasive one. 4. A defendant who lacks knowledge of pending charges cannot be penalized for failing to assert the speedy trial right while abroad. And once they become aware, we do not look at the time between arrest and the assertion of the right to a speedy trial in a vacuum. A two-year delay between arrest and assertion of the right was not unreasonable when new counsel had to be appointed six months before trial through no fault of the defendant and COVID protocols contributed to the delay. 5. If there is extreme delay in bringing a defendant to trial, the defendant need not present specific evidence of prejudice and instead may rely on the presumption of evidentiary prejudice created by the delay. The State's negligence in diligently pursuing the defendant is not automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced them. Appeal from Shawnee District Court; RACHEL L. PICKERING, judge. Submitted without oral argument. Opinion filed November 6, 2026. Conviction reversed and case dismissed. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, deputy district attorney, Michael F. Kagay, district attorney, and Kris W. Kobach, attorney general, for appellee. Before HILL, P.J., ARNOLD-BURGER, J., and ANDREA PURVIS, District Judge, assigned. ARNOLD-BURGER, J.: Efrain Garcia-Castillo appeals his conviction for the rape of a 12-year-old child. The alleged crime took place in 2006, but the case did not proceed to 2 trial until 2022. Garcia-Castillo asserted that the delay denied him his constitutional right to a speedy trial. But the State attributed the delay to Garcia-Castillo. It claimed that he caused the delay by fleeing to Mexico, therefore there could be no constitutional violation. The district court agreed and denied his motion to dismiss. The Kansas Supreme Court has long recognized: "The right to a speedy trial has been zealously guarded by the English people since the signing of the Magna Charta. It is written into the constitution of the United States and has been adopted in the bill of rights of this state. A right so sacredly guard ed cannot be lightly ignored. It is a right, not a privilege, and cannot be frittered away by the laches of public officers." State v. Brockelman, 173 Kan. 469, 473, 249 P.2d 692 (1952). It was not until 1972 in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), that the United States Supreme Court established specific factors a court should consider when evaluating whether a defendant's constitutional right to a speedy trial has been violated. After considering those factors, we conclude that Garcia-Castillo was denied the constitutional right to a speedy trial. Both the United States Constitution and the Kansas Constitution therefore require us to reverse his conviction and order the charges dismissed. FACTUAL AND PROCEDURAL HISTORY On or about July 15, 2006, 12-year-old N.C. lived with her Mother, Stepfather, younger sisters, and her maternal first cousin, Garcia-Castillo, in Topeka. Garcia-Castillo was in his mid-20s and was staying in a basement bedroom. Garcia-Castillo had been living with the family for about a year and working, although not legally authorized to do 3 so. However, he was planning to return to Mexico in a few days. He had a fiancé e in Mexico, who he planned to marry upon his return. On that night, N.C. was asleep in her bed. Around 1 or 2 a.m., she was awakened by the feeling of someone else in the bed. She opened her eyes and saw a shadow over her. She felt someone take off her clothes and begin to feel around her vagina. She had no idea who it was at this point. When N.C. felt facial hair on her cheek, she recognized that it was her cousin Garcia-Castillo. Garcia-Castillo put his penis inside N.C.'s vagina. After about five minutes of back-and-forth motion, Garcia-Castillo pulled his penis out. N.C.'s mother (Mother) came into the room and turned on the light. Mother asked Garcia -Castillo what he was doing, and he said that nothing had happened and not to tell his mom (her sister). Mother asked N.C. if anything happened and N.C. said, "'No.'" Mother told Garcia- Castillo to get out of her house and that she never wanted to see him again. Garcia - Castillo left. Mother told N.C. to go sleep in the room her younger sisters shared, and N.C. spent the rest of the night there. In the morning, Mother and Stepfather asked her again what had happened. This time, because Garcia-Castillo was no longer there, N.C. felt comfortable enough to tell Mother and Stepfather, "'Yes, he did. He did sexually assault me.'" She said, "[I]t had happened a lot." Mother and Stepfather called the police and took N.C. to the hospital for a sexual assault examination. Detective Daryl Ludolph interviewed N.C. at home before the family went to the hospital. N.C. told Ludolph that Garcia-Castillo first used his hand to rub the outside of her genital area, then removed her underwear, and inserted his penis into her vagina. Ludolph ended the interview so that N.C. could speak to a certified forensic interviewer. 4  N.C. went to Life House Child Advocacy Center to speak with a forensic interviewer. N.C. told the interviewer about Garcia-Castillo's actions that night. She said that she felt someone behind her and woke up, but she pretended that she was still asleep. N.C. explained that Garcia-Castillo touched her "private parts" with his hand on top of her clothing before he took her shorts off and put his penis in her vagina. She stated that he moved his penis in and out of her vagina, but she did not do anything but just lie there. N.C. explained that after it happened, Mother suddenly came into her room and asked if anything happened, but N.C. was scared and said no. When Mother came back around five or six in the morning, she asked again if anything happened and this time N.C. told Mother what happened. N.C. returned to the hospital for a sexual assault nurse examination (SANE). The SANE nurse found increased redness and swelling of N.C.'s labia. The SANE nurse testified at trial that the redness and swelling could be caused by a variety of factors, one of which was sexual assault. The swelling in particular was consistent with N.C.'s report of trauma or blunt force penetration to her genitals. She saw no other signs of injury. The SANE nurse testified that she took photographs of N.C.'s genitals as part of the exam in 2006, but those pictures had been lost by the time of the 2022 trial. Ludolph took photographs of N.C.'s bedroom and removed the blanket that was on N.C.'s bed and sent it for DNA testing. Because DNA had not been taken from Garcia - Castillo at that point, there would be no one to compare the DNA to for several years. Garcia-Castillo never returned to N.C.'s house. He returned to Mexico and married his fiancée as planned. N.C. did not see him again until 2017 when she visited Mexico with her family. She saw him in Mexico again the following year. In 2008, 22 months after the crime occurred, the State charged Garcia -Castillo with rape. It is undisputed that Garcia-Castillo had no legal status in the United States. It 5 is also undisputed that his family knew he was returning to Mexico to marry his fiancé e and saw him there several years later. Attempts by law enforcement to locate Garcia - Castillo will be outlined later in this opinion. In October 2020, Ludolph received an email telling him that Garcia-Castillo was in the Shawnee County jail. Ludolph obtained a search warrant to collect Garcia - Castillo's DNA, which was subsequently found to match DNA from the blanket from N.C.'s room 14 years earlier. The laboratory found semen stains on the blanket and DNA which was consistent with Garcia-Castillo and an unknown male contributor. Further DNA testing showed that the unknown male contributor was related to Garcia -Castillo. Before trial, Garcia-Castillo moved to dismiss based on a violation of his constitutional right to a speedy trial. The State responded. After hearings on the motion, the district court denied the motion to dismiss on the first day of trial. A jury ultimately convicted Garcia-Castillo as charged. The district court sentenced Garcia-Castillo to life in prison. Garcia-Castillo timely appeals. ANALYSIS GARCIA-CASTILLO'S RIGHT TO A SPEEDY TRIAL WAS VIOLATED On appeal, parties acknowledge that the State charged Garcia-Castillo with rape of a child in May 2008, yet it did not bring the case to trial until August 2022. He asserts that this delay violated his constitutional right to a speedy trial. 6  The Law Related to the Right to a Speedy Trial The Sixth Amendment to the United States Constitution grants every defendant the right to "a speedy and public trial." Further, section 10 of the Kansas Constitution Bill of Rights guarantees in all criminal prosecutions that defendants receive "'a speedy and public trial, by an impartial jury.'" State v. Owens, 310 Kan. 865, 869, 451 P.3d 467 (2019). "'The constitutional protection of a speedy trial attaches when one becomes accused and the criminal prosecution begins, usually by either an indictment, an information, or an arrest, whichever first occurs.'" State v. Rivera, 277 Kan. 109, 112, 83 P.3d 169 (2004). A court generally counts the time between that origin point and the defendant's trial to calculate the length of delay in a constitutional speedy trial analysis. State v. Ford, 316 Kan. 558, 561, 519 P.3d 456 (2022). In deciding whether to dismiss a case for speedy trial violations, a district court must look at the totality of the circumstances to evaluate four key factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of their right to a speedy trial, and (4) any prejudice to the defendant resulting from the delay. Barker, 407 U.S. at 530. The four Barker v. Wingo factors are nonexclusive and no one factor alone would be sufficient for a speedy trial violation. The factors have "no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." 407 U.S. at 533. The defendant carries the burden to establish the Barker factors support their claim. State v. Gutierrez-Fuentes, 315 Kan. 341, 345, 508 P.3d 378 (2022). But both the prosecutor and the court have an affirmative constitutional obligation to bring a defendant to trial in a timely manner. See United States v. Garcia, 59 F.4th 1059, 1066 (10th Cir. 2023). The remedy for denial of the right to a speedy trial is severe, dismissal of the charges. See United States v. Seltzer, 595 F.3d 1170, 1175 (10th Cir. 2010). 7  And finally, appellate courts have unlimited review when deciding if the State has violated a defendant's constitutional right to a speedy trial. State v. Ford, 316 Kan. 558, 560, 519 P.3d 456 (2022). With that foundation, we examine the facts of this case as they relate to the Barker factors. The Length of the Delay The first Barker factor guides the analysis. "'The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.'" Rivera, 277 Kan. at 113. Garcia-Castillo complains that the total delay between charges and trial—14 years (2008-2022) is presumptively prejudicial and the district court erred in finding it was not. We agree with Garcia-Castillo, as does the State. Kansas courts have no identifiable limits for presumptively prejudicial delay, with different cases finding presumptive prejudice from various lengths of time. See Rivera, 277 Kan. at 114 (244 days from time warrant served to preliminary hearing found presumptively prejudicial); State v. Ruff, 266 Kan. 27, 32, 967 P.2d 742 (1998) (three years presumptively prejudicial); State v. Fitch, 249 Kan. 562, 563-64, 819 P.2d 1225 (1991) (402 days presumptively prejudicial). And as the Barker Court pointed out, a delay that might be tolerable for a "serious, complex conspiracy charge" would be entirely unacceptable for "an ordinary street crime." 407 U.S. at 531. In State v. McDonald, 62 Kan. App. 2d 59, 65, 506 P.3d 930 (2022), this court found that McDonald's charge of child rape, although serious, is not complex enough to warrant a delay of over six years. 8  The duration at issue here—14 years from charge to trial—is longer than any of recent Kansas decisions finding presumptive prejudice. Although the district court specifically found that this delay was not presumptively prejudicial, the judge stated she was doing so because the delay was due to Garcia-Castillo fleeing the country. But this finding necessarily incorporates consideration of the second Barker factor—the reason for delay. In order to even consider the reason for the delay, the court must first find it is presumptively prejudicial. We have no hesitation finding that a 14-year delay was presumptively prejudicial. And on appeal the State concedes that "[t]he length of the delay here is sufficient to constitute presumptive prejudice and triggers the inquiry into the other Barker factors." Therefore, this factor weighs in favor of a finding that Garcia-Castillo's constitutional right to a speedy trial was denied. The Reason for Delay We next turn to the second Barker factor—the reason for the delay. This factor essentially tries to assess responsibility for the delay as between the government and the defendant. Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). The prosecution has the burden to "explain the cause of the pretrial delay." Garcia, 59 F.4th at 1066. Here, the prosecution takes the position that the sole reason for the delay is Garcia-Castillo's flight to Mexico, thus intentionally avoiding prosecution. As such it argues that this factor weighs against him and in favor of the State for purposes of determining a violation of his right to a speedy trial. 9  The Law Related to Extradition from a Foreign Country The return of a suspect from a foreign country to the United States —is governed exclusively by federal law and bilateral treaty. See 18 U.S.C. § 3181(a). Here the district judge found, and it is not disputed, that there was an extradition treaty between the United States and Mexico as of May 4, 1978. While a Kansas prosecutor has no independent authority to compel extradition from a foreign country, the prosecutor does play an important initiating role. The state prosecutor responsible for the case initiates extradition by contacting the Department of Justice's Office of International Affairs (OIA) to discuss the possibility of seeking extradition, including governing treaties, chances for extradition, possible defenses, and likelihood of apprehending the fugitive. Most extradition requests are granted. 1 Wharton's Criminal Procedure § 6:5 (14th ed.). Once the accused is found extraditable and is in the custody of the rendering country, the OIA notifies the prosecutor who initiated the request to arrange for transportation, and the U.S. Marshals Service typically escorts the fugitive to the United States, where the fugitive is transferred to the appropriate authorities for trial. 1 Wharton's Criminal Procedure § 6:5 (14th ed.); see also 2024 Kansas Attorney General Extradition & Interstate Detainer Manual, p. 8 ("International extradition is governed by treaties with the various participating nations. If your fugitive has fled to a foreign country, you must contact the Office of International Affairs. The Office of International Affairs will work with the prosecuto r to prepare a request for extradition to be submitted to a foreign country."). While prosecutors have broad discretion over extradition decisions, they are not entirely free from constitutional constraints. Both the Sixth Amendment and Kansas' constitutional speedy trial guarantee (Kan. Const. Bill of Rights, § 10) impose an affirmative obligation on the prosecution to bring defendants to trial in a timely manner. But when a defendant has fled to a foreign country, the speedy trial analysis is 10 significantly affected by the defendant's own conduct. If a defendant attempts to purposefully avoid detection, the government is not required to make heroic efforts to apprehend them. "However, if the defendant is not attempting to avoid detection and the government makes no serious effort to find him, the government is considered negligent in its pursuit." United States v. Mendoza, 530 F.3d 758, 763 (9th Cir. 2008); Rayborn v. Scully, 858 F.2d 84, 90 (2d Cir. 1988) (holding that law enforcement officials are not expected to make heroic efforts to apprehend a defendant who has purposefully fled to parts unknown). Similarly, where the prosecutor has a good-faith belief supported by substantial evidence that seeking extradition from a foreign country would be futile, due diligence does not require the prosecutor to do so. United States v. Corona-Verbera, 509 F.3d 1105, 1114 (9th Cir. 2007). The district court addressed this factor and the State's justification for the delay in several different ways. We will examine each reason given and whether it is supported by substantial competent evidence, is legally correct, and weighs in favor of the State or Garcia-Castillo. Garcia-Castillo fled to Mexico. The judge found that "in the cases where the defendant has fled to Mexico, fled the county, other cases and other courts have determined that that fleeing from your country, the defendant has, essentially, waived his right to speedy trial." The court again conflated two distinct legal concepts: (1) whether flight can make a defendant responsible for delay (which it sometimes can), and (2) whether flight constitutes a complete waiver of speedy trial rights (which it does not). Mere flight from the jurisdiction does not constitute an automatic waiver of the Sixth Amendment right to a speedy trial. Kansas courts continue to use the balancing test of Barker, rather than find that any one action 11 constitutes a waiver of a fundamental constitutional right. See State v. Otero, 210 Kan. 530, 532, 502 P.2d 763 (1972) (adopting the Barker test); see also Barker, 407 U.S. at 525-26 (noting that waiver is an intentional relinquishment or abandonment of a known right or privilege and should not be presumed in the loss of fundamental rights). But even if it were a correct statement of the law, the conclusion that Garcia - Castillo "fled" to Mexico is not supported by the evidence. The State had the burden to show that Garcia-Castillo intentionally fled Kansas to avoid prosecution for child rape. Instead, the evidence presented by both N.C. and her mother was that Garcia -Castillo was planning to return to Mexico that weekend to see his fiancée and get married, and he did so. There was no evidence that Mother told him she was calling the police. Moreover, it is undisputed that he was not confronted by police before he left. There is no evidence that any officer contacted him, although they had his phone number. There is no evidence that they contacted his employer to determine his location or any documents he may have provided related to his identity. The testimony supported a conclusion that he did not return to N.C.'s home because Mother—his aunt with whom he had been living—told him never to return. And the testimony supports the conclusion that he left the country because that had always been his plan. We pause to note that neither party addresses the fact that Garcia-Castillo had no legal status to allow him to remain in the United States, so absent any pending charges or investigation of which he was aware, he was legally required to leave the country. Not that she was required to do so—she was not, but there was no evidence that on the two occasions N.C. saw Garcia-Castillo in Mexico she confronted him or told him charges were pending against him in Topeka. The defendant cannot waive a right to a speedy trial on charges that did not yet exist when he left the country and of which he had no knowledge. And there is absolutely no evidence to support a finding that he knew charges were going to be filed at all, let alone 22 months later. 12  In Doggett, 505 U.S. at 662-63, the United States Supreme Court found it significant that there was no evidence that Doggett was ever aware of his indictment before he left the United States or at any time prior to his arrest. It found that a six-year delay during a time when Doggett had no knowledge of the charges, coupled with the lack of reasonable attempts to locate him, could not be assessed against him in the speedy trial balancing test. The district court's finding that Garcia-Castillo fled the jurisdiction was not supported by substantial competent evidence, and the court's companion legal conclusion that he waived his speedy trial rights by fleeing the jurisdiction was error. Diligent Efforts to Locate Garcia-Castillo "The State's inability to arrest a defendant because of the defendant's own evasive tactics is a valid reason for delay. But in that event, the State bears the burden to show that it took reasonably diligent efforts to pursue an evasive defendant." State v. McDonald, 62 Kan. App. 2d 59, Syl. ¶ 3, 506 P.3d 930 (2022). Here the district court found: "And here we have a person who has fled to Mexico, with a social security number that does not match up with who he is. The State presented evidence of at least four attempts to track down Mr. Garcia-Castillo. That was done here in America. And they show the attempts they've made. "Even if they had made four attempts, six attempts, eight attempts, he was in Mexico. This Court does note that they did make reasonable efforts because all of —the defense argues that there was the extradition treaty that the officers could have used. "An extradition treaty is only used—they've only used it twice, and that is dealing with homicides or murders. The Sheriff's Office never testified that they've used 13  it in cases of defendants charged with rape. Therefore, this Court does find that the delay was reasonable, given efforts that they made." There is a lot to unpack here. The undisputed record supports the following attempts by law enforcement to locate Garcia-Castillo. 1. In July 2006, within days of the alleged crime, the family advised Detective Ludolph that they believed Garcia-Castillo had left for Mexico. Ludolph advised them to contact him if Garcia-Castillo returned to their home. He also acknowledged that Garcia-Castillo had been working in Kansas City, Kansas, or Kansas City, Missouri. There was no evidence that he ever attempted to go to Garcia-Castillo's known place of employment. 2. Contemporaneously, Detective Ludolph issued an "Attempt to Locate." This would result in Garcia-Castillo's arrest if any officer in the State of Kansas detained him. 3. Also, contemporaneously, the family gave Detective Ludolph a phone number for Garcia-Castillo. He did not put in his report that he ever called that number, and he could not remember at the hearing on Garcia-Castillo's motion to dismiss whether he called it, although it would be his normal practice to do so. 4. Almost two years later, charges were filed against Garcia-Castillo on May 13, 2008. 5. On May 19, 2008, the sheriff's office received a warrant for Garcia-Castillo's arrest and the following day it was entered into the National Crime Information Center (NCIC) database. This would alert law enforcement in any state of the warrant. 6. The notes accompanying the warrant again noted that the family advised that Garcia-Castillo was living in Mexico. 14 7. On January 12, 2009, an unidentified person from border patrol contacted the sheriff's office wanting a photograph to accompany the warrant, and the sheriff's office sent them the photograph. 8. On May 21, 2012, the sheriff's office notified media affiliates in northeast Kansas that Garcia-Castillo was on the Northeast Kansas Most Wanted list, which is "very local." There were no responses from that action. The sheriff's office did not place Garcia-Castillo on the Kansas Most Wanted list or on America's Most Wanted list, which would have extended its coverage. 9. At some point, the warrant went into an "inactive" warehouse location. 10. Over eight years after the last known action related to the warrant, in September 2020, Garcia-Castillo was arrested in Texas. There was no evidence presented that this was a result of any action by Kansas law enforcement. 11. On October 10, 2020, the warrant was served on Garcia-Castillo in Texas. 12. He appeared before the Shawnee County District Court on October 13, 2020. 13. On July 6, 2022, at the request of the prosecutor, Theresa Peters, an investigator for the district attorney's office, ran a check through the CLEAR system for information about Garcia-Castillo. She described the system as follows: "And when you use a CLEAR search you can search someone by their name, date of birth, possible location, social security number, driver's license. Different ways of searching for people. So we use it to obtain current contact information. Victims, witnesses, defendants. We use it routinely. It's not a hundred percent accurate, but it's highly accurate and I've found it to be super helpful when trying to find people." Peters had to use another system called New World to find any social security numbers associated with Garcia-Castillo's name. This system was also routinely used by law enforcement. The only social security number she found did not actually belong to Garcia-Castillo. She had no idea when or where this 15  social security number had been used by him. She said it takes less than five minutes to enter information and get results, and she believed the CLEAR system had been used since sometime before 2017. She was not aware of any prior searches conducted for Garcia-Castillo before the one she did, and the State did not present any evidence of prior searches under either system, although the systems had been available for a while. 14. Detective Ludolph testified that the Shawnee County Sheriff's Office does not have the capability of going to Mexico to track down a fugitive. He did not believe they had the legal authority or the resources to do so. The only two actions they can take is to put the information in the NCIC system and they could also contact the United States Marshals Service. "The other effort that I could think of doing that may be an option is allowing the United States Marshal Service to adopt our case for fugitive apprehension. But in order to do that, they are basically ones that decide if they will adopt a case or not. So basically we make petition to them and say, hey, we've got this warrant. We believe this person is in Mexico. Would you guys adopt this case to see—and go through the federal channels to attempt to locate, arrest in Mexico, and extradite back to the United States. "In my time in the warrants unit I know of two times that that's been done, both on murder cases. .... ". . . For somebody that we believed was in—specifically was in Mexico, it is very—we can ask. And even if they say yes, have no idea what it is they do to get that done. I'm sure there's a magnitude of red tape to get somebody extradited back into the United States." 15. Detective Ludolph admitted that no inquiry had been made to the U.S. Marshals Service in this case. 16. The Shawnee County District Attorney's Office made no attempts to extradite Garcia-Castillo from Mexico, nor is there any evidence that the prosecutor 16  sought assistance from the Attorney General's Office either in terms of procedural assistance or resources. Additional evidence of Garcia-Castillo's location in Mexico was provided during the preliminary hearing, as well as the subsequent hearing on the motion to dismiss, and ultimately at the trial. Garcia-Castillo was in Progreso San Luis Potosi, Mexico. The State concedes on appeal that the evidence supports the conclusion that "he went to Mexico where he had previously lived and had family." This was his hometown as well as Mother's hometown. Mother's parents, who were also Garcia-Castillo's grandparents, lived there. Once there he posted pictures of himself on his publicly accessible Facebook account. N.C. encountered him there twice. During her preliminary hearing testimony, N.C. noted that Garcia-Castillo has been in Mexico "this whole time." N.C. testified that detectives came to her mother's house on occasion between 2006 and 2020 to ask if she knew where Garcia-Castillo was, but she could not say how many occasions. At trial, Mother testified that she also encountered Garcia-Castillo in Mexico. With those facts before it, the district court found: "And here we have a person who has fled to Mexico, with a social security number that does not match up with who he is. The State presented evidence of at least four attempts to track down Mr. Garcia-Castillo. That was done here in America. And they show the attempts they've made. "Even if they had made four attempts, six attempts, eight attempts, he was in Mexico. This Court does note that they did make reasonable efforts because all of—the defense argues that there was the extradition treaty that the officers could have used. "An extradition treaty is only used—they've only used it twice, and that is dealing with homicides or murders. The Sheriff's Office never testified that they've used 17  it in cases of defendants charged with rape. Therefore, this Court does find that the delay was reasonable, given efforts that they made." First, the court's decision contains key factual findings that are not supported by the evidence. As already stated, there is no substantial competent evidence that Garcia - Castillo "fled" to Mexico. He was charged 22 months after the incident, and there was no evidence presented that he ever knew he was charged or knew that Mother had even notified the police at the time of the alleged crime. The family knew of his plans to return to Mexico, before this incident happened. He made it known that he had planned to return within a few days to marry his fiancée, and he did so. He was seen several times by Mother and N.C. in Mexico, but there is no indication in the record that they or anyone else told him he was wanted in Kansas. In addition, there is no substantial competent evidence that he used a false social security number to avoid detection on this warrant. The only evidence regarding a social security number is that the Shawnee County Sheriff's Office had no social security number at all for him until July 6, 2022, and there is no evidence of when or where the number they located at that time was used. There was no social security number listed on the warrant. There is no evidence that law enforcement ever contacted his employer. So it was not factually accurate to say that Garcia-Castillo "fled to Mexico, with a social security number that does not match up with who he is." (Emphasis added.) The court then went on to properly conclude that it did not really matter how many attempts were made locally to find him because he was always in Mexico. And that statement is supported by the record as already outlined. His location was no secret. Second, the court erred when it concluded that the policy of the Shawnee County Sheriff's Office to not extradite, even in cases of child rape, weighed in favor of the State in its Barker analysis. The law supports the opposite finding. The total lack of effort to 18 extradite Garcia-Castillo, when it had every reason to believe he was in Mexico, weighs in Garcia-Castillo's favor. A claim of "we don't do that for anything other than homicide" is not sufficient to justify the State's lack of effort here. We will be more precise. The whole responsibility of seeing to it that the accused is given a speedy trial rests upon the prosecution and not on the accused. State v. Hess, 180 Kan. 472, 474, 304 P.2d 474 (1956). In Doggett, 505 U.S. at 652-53, the United States Supreme Court found that although the prosecution claimed it had diligently pursued Doggett, the evidence did not support the claim. "For six years, the Government's investigators made no serious effort to test their progressively more questionable assumption that Doggett was living abroad, and, had they done so, they could have found him within minutes. While the Government's lethargy may have reflected no more than Doggett's relative unimportance in the world of drug trafficking, it was still findable negligence . . . ." 505 U.S. at 652-53. The United States Supreme Court found that the reason for the delay weighed in Doggett's favor based on the negligence of law enforcement. 505 U.S. at 652-53. It is hard to distinguish those facts from these. Here, the State concedes on appeal that the bulk of the evidence the State had, including statements and sightings from his family, indicated Garcia-Castillo was in Mexico. The State does not dispute that he said he was going to return home to marry his fiancée. Clearly, his hometown would have been the first place to look and would likely have proven fruitful. Yet, the State chose not to pursue Garcia -Castillo to Mexico. Why? According to the State: "The Sheriff's Office did not have the authority or resources to go to Mexico to find Garcia-Castillo. . . . The Sheriff's Office could request assistance 19  from the United States Marshal Service, but it was merely a request. . . . And the only two cases that Lt. Louderback knew such a request had been made were in homicide cases. . . . Nonetheless, the State presented the reasonable efforts that were made by law enforcement within the United States in order to locate Garcia-Castillo, if he had not fled, or alternatively, were to return." In other words, the sheriff's office made a policy decision not to pursue extradition in cases of child rape. Period. But Detective Ludolph was correct that any efforts would have to go through federal channels and involve the U.S. Marshals Service and "a magnitude of red tape." So inaction was not due to complete ignorance of the process. And even though the ultimate responsibility rests on the prosecution, t he State did not present any evidence of efforts by the district attorney's office to pursue extradition. Nor does the State, joined in its brief by the Attorney General, claim that there were any legal impediments to pursuing extradition in this case or that such attempts would be futile. It was solely a financial decision related to resources of the sheriff's department. All the while, the prosecutor's office chose to wash its hands of its statutory and constitutional responsibility in this matter, instead resting its case on what it believed was justifiable inaction by the sheriff's department. To borrow the sentiment from Doggett, the State's lack of effort reflects an undeniable disinterest in pursuing child rapists in the scheme of criminal activity in Shawnee County. That strategy has consequences, the most serious of which is the resulting delay in prosecution could contribute to the finding of a constitutional speedy trial violation and the dismissal of child rape charges. In sum, the district court's finding that the sheriff's office diligently pursued the warrant was not supported by substantial competent evidence. The court also erred in its legal conclusion that the State is excused from having its failure to pursue extradition considered against it when the local sheriff's office has a policy not to pursue extradition in the case of child rape. A policy decision not to pursue extradition of suspects no longer living in the United States for any crime but homicide, does not relieve the State, under the speedy trial rubric, of its duty to exert reasonably diligent efforts to pursue an evasive