Shifting Speedy Trial Blame

The United States Supreme Court’s ruling in Vermont v. Brillon reverses the Vermont Supreme Court’s decision and reinstates a conviction for a defendant who waited nearly 3 years for trial.  The sorry tale of his trek through public defenders was a problem:

During the time between his arrest and his trial, at least six different attorneys were appointed to represent him. Brillon “fired” his first attorney, who served from July 2001 to February 2002. His third lawyer, who served from March 2002 until June 2002, was allowed to withdraw when he reported that Brillon had threatened his life. His fourth lawyer served from June 2002 until November 2002, when the trial court released him from the case. His fifth lawyer, assigned two months later,withdrew in April 2003. Four months thereafter, his sixth lawyer was assigned, and she took the case to trial in June 2004.

The Court framed the issue as whose problem, the defense or prosecution, based on Barker v. Wingo.  The Supremes answered that it was Brillon’s problem, as he was not the most pleasant defendant around and therefore, in the relative scheme of who gets nailed for the delay, the defendant was to bear the weight.

In arriving at that conclusion, the Court rejected the Vermont view that public defenders are state actors, but ascribed the same position as private counsel.  Moreover, the Supremes disagreed with the Vermont court’s parsing each adjournment to determine its cause, rather than simply bunch it together as the product of Brillon’s generalized intransigence and lack of cooperation.

This is a problem case.  Not merely because of some weird facts, showing that Brillon was indeed as much of a difficult defendant as suggested, but similarly showing some systemic failures in the public defender system, most notably when his lawyer withdrew because his contract with the state lapsed.  But in reviewing the problems and issue that arose, lawyer by lawyer, two predominant themes prevail:  Brillon was difficult, and the system was severely overburdened.  It’s the latter that makes this case important.

The question posed by Brillon that is meaningful for others is what happens to defendants whose cases are delayed as a result of public defenders being so overburdened that they can’t get a case to trial within sufficient time to pass speedy trial muster.  The answer, it appears, is nothing. 

By attributing the public defenders’ issues with the state to the defense, and making the defendant responsible for the delay caused by his lawyer, even if his lawyer’s problems are caused by state demands and funding problems, seems a rather meandering route to shifting the state’s inability to provide sufficient public defenders, and sufficient funds, onto the backs of defendants. 

Reactions have varied across the blawgosphere.  Bobby Fredericks of South Carolina thinks the Supremes got it right, largely because this was the wrong set of facts for the court to rule on the issue.

Where a defendant causes the delay by purposefully switching attorneys or by his conduct which necessarily results in new counsel being necessary, the defendant can’t claim that he has been denied his right to a speedy trial. Where counsel for the defendant requests a continuance in the case, the general rule is that the right to a speedy trial has been waived. If the defendant does not ask for a speedy trial, the right to a speedy trial may be waived. Only when the state is the cause of the delay – whether it is purposeful or whether it is due to overcrowded dockets or whether it is due to the state’s inability to provide adequate counsel in a timely manner – should a dismissal for violation of the right to speedy trial be granted. Like I said, this was not the ideal test case for this issue.

Jon Katz of Underdog, on the other hand, finds the Breyer dissent (with Stevens joining) more persuasive:


Brillon’s sole dissenters are Justices Breyer, joined by Justice Stevens, who seem to grasp and handle the facts and law of the case in a more sensible and just manner. The dissent finds the cert. petition in this case as improvidently granted, after asserting that the Vermont Supreme Court dismissed Brillon’s conviction without counting delays caused by court-appointed counsel. The dissent points out that even the state of Vermont conceded in its brief to the U.S. Supreme Court that approximately seven-month delay in getting Brillon his final lawyer cannot be attributed to the defendant.


While there isn’t much doubt that the facts of Brillon were unnecessarily ugly, burdening the bigger picture and diverting attention from the competing facts that squarely lay blame for much (though not all) of the problems on the state, I suspect the Supremes are smart enough to have parsed the details to recognize that the issue really wasn’t about Brillon’s lack of cooperation, but about who takes ownership for delays caused by public defenders that are contrary to the expressed wishes of the defendant. 

There is a harsh reality that the Supreme Court chose not to recognize here; a defendant cannot control or direct a public defender to drop his other work and attend only to one defendant’s needs and wishes.  While a public defender is properly compared to private counsel in some ways, the public defender still serves a different master in others.  This was made abundantly clear when Brillon’s lawyer pulled out because his PD contract was not renewed.  Was it up to Brillon to renew the contract?  Was Brillon supposed to fund the PDs office?  Where could Brillon have altered the course of the delay?

It was an unfortunate case to present an important issue, and I can well appreciate the dissent’s angst in watching bad law (yet again) derive from bad facts.  But I similarly feel confident that the Court could have done far better with this case, bad facts notwithstanding.  Instead, as public defenders across the country find themselves in a state-created bind that will inure to the massive detriment of defendants, the individuals who expect Gideon v. Wainwright to provide them with some solace will have to give up their speedy trial rights as a condition of receiving a defense.

Once again, the state’s failure becomes the defendant’s burden.  What a surprise.