Oral argument: January 13, 2009
Appealed from: Supreme Court of Vermont (March 14, 2008)
INDIGENT, ASSIGNED COUNSEL, PUBLIC DEFENDER, SIXTH AMENDMENT, RIGHT TO A SPEEDY TRIAL, WINGO TEST, DEFENDER GENERAL
The Sixth Amendment of the United States Constitution provides defendants with the right to a speedy trial. In July of 2001, Michael Brillon was charged with aggravated domestic violence, and was ultimately sentenced to twelve-to-twenty years confinement. However, due to excessive delays before his trial caused solely by his public defenders, the Supreme Court of Vermont vacated his conviction and dismissed the charges with prejudice. The questions the United States Supreme Court will have to decide is whether delays caused by an indigent's public defenders' lack of preparedness can be the basis for a sixth amendment right to a speedy trial violation, on the theory that the state is responsible for providing adequate public defenders to indigents; and if so, does this give greater rights to indigent defendants than defendants with private attorneys?
1. Whether continuances and delays caused solely by an indigent defendant's public defender can arise to a speedy trial right violation, and be charged against the State pursuant to the test in Barker v. Wingo, 407 U.S. 514 (1972), on the theory that public defenders are paid by the state.
2. Whether the right to counsel, as established in Gideon v. Wainwright, 372 U.S. 335 (1963), should result in broader speedy trial rights to indigent defendants than defendants who are able to retain private counsel, such that only delays by private counsel get charged against the defendant under the Barker v. Wingo test.
Can a defendant have his case dismissed, on the grounds that his Sixth Amendment right to a speedy trial has been violated, when his own public defender has requested or otherwise caused all of the delays?
In July of 2001, Michael Brillon was arrested and charged with domestic violence for hitting his girlfriend in the face during an altercation. Vermont v. Brillon, 955 A.2d 1108, 1113 (Sup. Ct. of VT, March 14, 2008). Although domestic violence is normally a misdemeanor in Vermont, Brillon was charged with an enhanced felony domestic assault and as an habitual offender; he had three prior felony convictions, and this incident was a violation of his the pretrial conditions of release. Id. at 1113. Brillon was ultimately convicted and sentenced to between twelve and twenty years confinement. Id. However, before his trial, Brillon waited in jail for nearly three years, due to multiple delays. Id. On appeal, the Supreme Court of Vermont held that the delays violated his right to a speedy trial, pursuant to the Sixth Amendment of the U.S. Constitution, and chapter I, article 10 of the Vermont Constitution. Id. at 1114. The Supreme Court of Vermont dismissed the charges and vacated Brillon's conviction. Id. at 1111.
In order to determine whether the Sixth Amendment right to a speedy trial has been violated, the United States Supreme Court has created a four-prong balancing test in Barker v. Wingo, 407 U.S. 514, 530 (1972), which the Supreme Court of Vermont has adopted. Vermont v. Brillon, 955 A.2d at 1114. The Wingo balancing test considers (1) the length of the delay, (2) the reason for the delay, (3) the extent to which the defendant asserted the right to a speedy trial, and (4) the prejudice the delay causes to the defendant. See Id.
The first factor, the length of delay, primarily acts as a trigger for review of the other three factors, and the Supreme Court of Vermont found that the nearly three-year delay in this case was far more than enough to trigger review of the other factors. Vermont v. Brillon, 955 A.2d at 1115-16.
Regarding the second factor, the reason for the delay, the Supreme Court of Vermont found that approximately eleven of the months did not count against the state because Brillon caused them, either directly or indirectly, and the prosecution had diligently tried to move the case forward during that time. See Vermont v. Brillon, 955 A.2d at 1120. But, the Supreme Court of Vermont found that most of the remaining two years of delay were attributable to the state. This was because most of those delays were caused by the "inability or unwillingness of assigned [defense] counsel to move the case forward." Id. at 1121. Specifically, the court found the delays were the fault of the Vermont Defender General's office, which is responsible for assigning public defenders. Id. The court found that delay caused by the Defender General is attributable to the state because the office "is part of the criminal justice system ." Id.
The Supreme Court of Vermont found that the third factor, the extent to which the defendant asserted his right to a speedy trial, weighed against the state, because Brillon had clearly stated that he wanted to be tried as soon as possible. Vermont v. Brillon, 955 A.2d at 1122. Brillon had asked the court to replace several of his attorneys, whom he felt had not been moving his case forward, and only grudgingly agreed to allow more time for some of his attorneys because they had admitted they were not adequately prepared. See Id. at 1117-19, 1121.
The Supreme Court of Vermont also weighed the fourth factor, the prejudice the delay causes to the defendant, against the state, stating that three years is long enough to potentially erode evidence, such as witnesses' memories, and unfairly prejudice the defendant. See Vermont v. Brillon, 955 A.2d at 1125.
The United States Supreme Court granted certiorari on October 1, 2008 to determine if delays caused by a breakdown in the assigned counsel system can ever be the basis for a violation of the right to a speedy trial. Vermont v. Brillon, Docket No. 08-88.
Can delays caused by a public defender be the basis for a violation of the Sixth Amendment right to a speedy trial? If so, does this mean that a poor defendant with a public defender has a greater Sixth Amendment right to a speedy trial than a defendant who is able to afford a private attorney, since delays caused by a defendant's private attorney are attributed to the defendant and, thus, cannot be the basis for a right to a speedy trial claim?
Vermont argues that delays caused by a poor defendant's public defender cannot be the basis for a claim that his right to a speedy trial has been violated because, even though a public defender is paid by the state, her role is as an advocate for the defendant, and thus as an adversary to the state. See Brief for Petitioner at 30-34. Vermont also argues that allowing these delays to count against the state would give greater rights to poor defendants than defendants with private attorneys. See id. at 36. Brillon argues that the issue is really that delays should be counted against the state when they are caused by a failure in the Defender General's office, which is an arm of the state and is responsible for assigning public defenders, to adequately assign dependable counsel. See Brief for Respondent at 29.
Some amici argue that allowing delays caused by the defendant or his public defender to count against the state would only encourage poor defendants or their public defenders to cause as many delays as possible, in the hopes that enough delays would result in their cases being thrown out for violating the defendant's right to a speedy trial. See Brief for the United States in Support of Petitioner at 19; Brief of Vermont Network Against Domestic and Sexual Violence et. al., in Support of Petitioner at 22. They argue that this would give potentially dangerous people an extra tool to avoid conviction for their crimes. See Brief for the United States in Support of the Petitioner at 18-19. Furthermore, causing delays is already a common defense tactic because the memories of the prosecutor's witnesses tend to fade with time, and encouraging this expensive tactic would only further burden already overburdened courts. See id. at 18.
The Vermont Network Against Domestic and Sexual Violence, et. al., also argue that defendants charged with domestic violence often misuse the system by intentionally causing delays to further harass their victims. See Brief of Vermont Network Against Domestic and Sexual Violence et. al., in Support of Petitioner at 7. They argue that allowing these delays to count towards a right to a speedy trial violation would reward this kind of behavior. See id. at 6-7. They cite to evidence that domestic and sexual offenders' motivation typically is to control every aspect of their victims' lives, partly by using various psychological techniques. See id. at 7-8. Once the offenders are in the court system, they often do this by manipulating the system. See id. at 9. These amici argue that rewarding a defendant who uses these tactics by counting these delays against the state, which could possibly result in their cases being thrown out, would only further discourage victims of domestic and sexual violence from seeking outside help and trusting the legal system. See id. at 6-7.
In response to both of these arguments, Brillon argues that the delays at issue here were caused by a failure in the Defender General's office, not by the defendant or his counsel. See Brief for Respondent at 50. According to The Innocence Project, underfunded assigned counsel systems (such as the Defender General's office) lead to overburdened and incompetent public defenders. See The Innocence Project, Bad Lawyering. This, in turn, often leads to unfair proceedings and even wrongful convictions of innocent defendants, who have no control over the systems proving for their representation. See id. Brillon argues that attributing delays to the state that are caused by a failure in the Defender General's office does not actually encourage delays by a defendant or his public defender because the Defender General and the public defender are separate entities. See id. at 48-49. To further elucidate this, Brillon proposes that delays caused solely by a defendant or his public defender, which are not a result of external state influences, such as a breakdown in the Defender General's office, should not count against the state. See id. at 47. Brillon further argues that the Defender General's responsibility is simply to assign competent counsel to defendants, not advocate for them, and thus he has no particular interest in creating delays that could possibly secure a defendant's freedom. See id. at 49-50. Brillion states that "[t]he notion that [the Defender General] would intentionally violate its duty in order to obtain that rarest of outcomes, a speedy trial dismissal, is frivolous." Id. at 50.
Which Party Should be Charged with the Delays?
Vermont argues that there is no question that the delays must be charged to the defendant, and that therefore there was no speedy trial violation. See Brief for Petitioner at 24. According to Vermont, unlike other constitutional rights, infringing on the right to a speedy trial is not per se prejudicial to the defendant. See id. at 27 (quoting Barker v. Wingo, 407 U.S. 514, 521 (1972)). Since the right to a speedy trial was only intended to protect defendants from abuses by the government, in order for the delay to rise to the level of a Constitutional violation, the delay must be the government's fault or a general failure in the system. See id. at 25 (quoting United States v. Cadarr, 197 U.S. 475, 478 (1905)). Vermont argues that in this case the failures were not the government's fault and were not systemic because they were not due to any shortcoming of the Defender General's office. See Brief for Petitioner at 33. Had there been proof that the appointed counsel was not diligent or that the Defender General's office lacked resources, causing the delays, it would be proper to charge those delays to the prosecution. See id. However in this case, Vermont argues that each time the defendant fired his counsel, a new defender was immediately assigned and was ready for trial soon after. See id. In fact, Vermont claims that the delays were merely an attempt by Brillon to try and gain a tactical advantage because the longer he delayed, the more likely it was that the case against him would be weaker due to memory loss and witness unavailability. See Brief for Petitioner at 26 (quoting Barker at 521). Vermont says that in cases where the delay is in the best interest of the defendant or is intentionally caused by him for his advantage, he cannot be allowed to benefit by charging that delay to the prosecution. See id. at 27.
Brillon rebuts the suggestion that he attempted to use delays to manipulate the system by pointing to the lower court record which states that the delays were because of the failure of several assigned counsel to do anything to move his case forward despite his consistent requests. See Brief for Respondent at 26. He argues that it is the responsibility of the government to provide representation and ensure speedy trials and that any failure to do so is appropriately attributed to them. See id. Further, Brillon points out that as an indigent defendant, he did not have the ability fire his lawyers and that the decision to replace his counsel was at the discretion of the court. See Brief for Respondent at 53 (quoting United States v. Gonzalez-Lopez, 548 U.S. 140 (2006); Morris v. Slappy, 461 U.S. 1 (1983)).
Brillon further argues that that it was appropriate for his conviction to be vacated because "an unacceptable amount of the delay was attributable to the system." See Brief for Respondent at 25. He points out that the Vermont Supreme Court attributed the time between June 11, 2002 and the eventual trial of June 14, 2004 to failure of the criminal justice system, a point which Vermont partially conceded. See id. at 24-25. For example, Brillon argues that the numerous motions for continuance were because of the unpreparedness of his counsel and that many of the delays were further complicated by court congestion, mismanagement of cases and absence of legal representation, all which are attributable to the prosecution. See id. at 28. Specifically, Brillon points to periods of time that he was unrepresented and periods where he had counsel who were inactive and eventually released for contractual reasons. See Brief for Respondent at 27. According to Brillon, this time is not in dispute and is attributable to the prosecution as unconstitutional delay. See id. at 34. Finally, according to Brillon, the prosecution itself failed to provide discovery and consented to continuances in violation of their duty to move the case forward. See id. He says that since the burden is on the courts and the prosecutors to bring the case to trial, failure to do so should therefore be charged to them. See Brief for Respondent at 29.
Does the Lower Court Decision Create an Unfair Advantage for Certain Defendants?
Vermont argues that another reason the lower court decision cannot stand is because it provides different speedy trial rights to indigent defendants than defendants who are able to retain private counsel. See Brief for Petitioner at 36. Vermont argues that this violates the Constitution and Gideon v. Wainwright, which is supposed to ensure that the right to counsel makes every defendant "equal" under the law. See id. at 37 (quoting Gideon v. Wainwright 372 U.S. 335, 344 (1963)). Under the lower court decision, only delays by private defense counsel would be charged against the defense, while delays by public defenders would be charged to the prosecution. See id. at 36-37. Vermont says that this creates a potential disadvantage for indigent defendants because the trial courts will be less likely to grant motions for indigent defendants that they know will be charged against the State. This may force those defendants to go to trial before their counsel is ready, or deny them a change of counsel for fear that those delays would result in a speedy trial violation. See Brief for Petitioner at 39. Vermont also points out the possibility that if intentional delays by the defense did succeed in getting charged to the prosecution and getting the case dismissed, defense counsel could win merely by delaying the trial, which would not be fair and would create an incentive for the defense to delay. See id. at 34.
According to Brillon, Vermont's argument that the Vermont Supreme Court decision invites abuse and creates a different standard for indigent and non-indigent defendants holds no water because it misinterprets the opinion. See Brief for Respondent at 44. Brillon points out that the lower court's decision does not say that just because public defenders are paid by the state that their delays would automatically be counted against the prosecution for speedy trial purposes. See id. Rather, the holding says that only the improper actions of the Defense General's office that resulted in delays would be counted against the state, not the action of the individual defense attorneys. Brief for Respondent at 45. Brillon says that the proper interpretation of the opinion also eliminates Vermont's argument that it would create an incentive for the public defenders to delay. The individual defenders would still work to represent their clients and would not have an incentive to delay because their delay would not get the case dismissed. See id. at 49-50. Brillon argues that only the action/inaction of the Defense General's Office could result in a dismissal, but because the objective of that office is not to win the case but rather to promote justice, there is no fear that they would purposefully delay a trial. See id.
How Have Other Courts Decided this Issue?
Brillon argues that the Vermont Supreme Court was correct in finding a speedy trial violation because courts frequently find that such delays result in constitutional violations. See Brief for Respondent at 40. Specifically, Brillon points to numerous decisions finding speedy trial violations because of delays resulting from poor representation for the defendant. See id. at 39. He emphasizes those courts' argument that any other conclusion would result in defendants having to choose between their constitutional rights to counsel and to a speedy trial. See id. (quoting Glover v. State, 817 S.W.2d 410 (Ark. 1991)). Brillon highlights State v. Stock, where the trial delays caused by the public defender's heavy caseload were attributed to the prosecution. See Brief for Respondent at 39-40 (quoting State v. Stock, 147 P.3d 885, 888 (N.M. Ct. App. 2006)).
Vermont argues that the cases relied on by the Vermont Supreme Court and Brillon are not applicable. See Brief for Petitioner at 35. For example, it argues that State v. Stock doesn't apply here because in that case the court found that "both parties bear some responsibility for the delay" and in this case the state opposed the delays and pressed for trial. See id. (quoting State v. Stock, 147 P.3d 885, 891 (2006)). The Vermont Supreme Court also relied on People v. Johnson, which stated that the right to a speedy trial extends to delays caused by "those whom the judges assign to represent indigent defendants." See Brief for Petitioner at 35 (quoting People v. Johnson, 26 Cal. 3d 557, 571 (1980)). Vermont points out that the court ignored the rest of the quotation, which goes on to say that a finding speedy trial violation would allow the defendant to escape trial for a serious crime. See id.
According to Vermont, "no other court has ever vacated a conviction and barred a retrial for speedy trial violations where the defendant or his counsel caused all the delays." Brief for Petitioner at 36. Specifically, Vermont points to numerous circuit court decisions in which defendants' actions contributed to the delays and the no constitutional violation was found. For example there was no speedy trial violation where, the defendant discharged his counsel twice (United States v. Lagasse, 269 F. App'x 87 (2d Cir. 2008)), sabotaged his relationship with his appointed attorneys causing delays (United States v. Sutcliffe, 505 F.3d 944, 957 (9th Cir. 2007)), or merely sought new counsel (United States v. Brown, 498 F.3d. 523, 531 (6th Cir. 2007)). See Brief for Petitioner at 34. According to Vermont, "when delay is caused by the defendant, delay does not count against the state at all." Brief for Petitioner at 30-31 (quoting Rashad v. Walsh, 300 F.3d 27, 34 (1st Cir. 2002)).
Brillon argues that these cases do not apply because they are cases where the delays are attributable to the defendant himself, not where the delays were caused primarily by court appointed counsel. See Brief for Respondent at 42.
The United States Supreme Court will have to answer the questions of whether delays caused solely by an indigent's public defender can be the basis for a Sixth Amendment right to a speedy trial violation, on the theory that the state is responsible for providing effective public defenders to indigent defendants; and if so, does this give a greater Sixth Amendment right to indigent defendants than defendants who can afford private attorneys? The Supreme Court will have to consider whether to attribute these types of delays to the Defender General's office or to the defendant. If it finds that the Defender General's office bears responsibility for these types of delays, the Supreme Court will then have to decide whether the Defender General was acting as an arm of the state, and thus, weigh the delays against the state. The outcome of Supreme Court's ruling on this case will likely affect the relationship between indigent defendants and their public defenders.
Edited by: Joe Hashmall
- LII WEX: Criminal Procedure
- American Bar Association: Speedy Trial and Timely Resolution of Criminal Cases
- Right to a Speedy Trial
- MISCELLANEOUS MATTERS: Speedy Trial: Sixth Amendment Right to a Speedy Trial
- The Innocence Project