Argument Preview: Vermont v. Brillon
At 11 a.m. today, the Court will hear argument in Vermont v. Brillon (08-88). Stanford Law student Jess Oats discusses the case below.
The Speedy Trial Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” The question before the Court is whether delays caused by public defenders, or delays resulting from a state’s system of public defense, can deprive a criminal defendant of his right to a speedy trial.
This case stems from a three-year delay in bringing respondent Michael Brillon to trial on charges arising from an incident in which Brillon struck his girlfriend during an argument. Absent aggravating circumstances, a domestic assault charge in Vermont is a misdemeanor punishable by no more than one year in prison. However, Brillon had previously been accused of slashing his girlfriend’s tires, and a district court had issued an order forbidding Brillon from harassing his girlfriend. When Brillon was charged with domestic assault, then, the aggravating circumstance of the violation of this order allowed the State to charge him with second-degree aggravated assault, a felony offense. Additionally, Brillon had three prior felony convictions and was charged as a habitual offender, exposing him to a life sentence.
An inordinate number of pages in the case have been devoted to precisely what transpired during the three years in which Brillon was awaiting trial. Brillon was arrested on July 27, 2001. From this point forward, Brillon was held without bail. Between July 30, 2001 (the day of Brillon’s arraignment) and February 22, 2002, Brillon was represented by a public defender who moved once to continue proceedings because he was moving his former private practice, and moved once to continue proceedings to allow him to file a motion to recuse the trial judge (which was ultimately denied). Both motions were granted. The public defender explicitly conceded that these delays were not to be charged against the State for speedy trial purposes. At one point, Brillon filed a letter with the court complaining that he had been held without bail for more than sixty days, and despite numerous telephone calls and letters, his counsel had not contacted him or engaged in any discovery in preparation of his defense. Around this time, the public defender asked for a third continuance on the ground that further investigation was necessary. The court denied the request and set a trial date of February 26, 2002.
On February 22, 2002, the public defender again moved for a continuance, indicating that his heavy caseload made it impossible to prepare for trial. At a hearing the same day in which Brillon was participating by telephone, the court denied the motion. At the end of the hearing, Brillon fired his public defender. On February 28, 2002, the public defender moved to withdraw, telling the court that Brillon had fired him because of his alleged failures to maintain adequate communication and prepare Brillon’s case for trial. At a hearing the same day, the court warned Brillon that firing his attorney would mean the further delay of his trial; Brillon stated that he had no choice because the public defender was not prepared for trial. The court granted the motion and ordered the appointment of a new lawyer, and scheduled a status conference in thirty days.
The new lawyer quickly discovered a conflict. On March 1, the court appointed a third attorney to represent Brillon. On June 11, the court held a hearing on a pro se motion by Brillon alleging that his attorney refused to communicate with him, file motions, or share discovery material. According to Brillon, the third attorney had admitted that his caseload precluded him from working on Brillon’s case. Brillon stated that he wanted to be brought to trial. Toward the end of the hearing, the attorney moved to withdraw because Brillon had threatened him. The court granted the motion, admonished Brillon that he was not entitled to manage all aspects of his defense, and warned him that appointing another attorney would cause further delay. The same day, the court appointed a fourth attorney.
Between June 11, 2002 and August 5, 2002, there was no action on the case. On August 5, the fourth attorney requested a sixty-day continuance to prepare for trial, explaining that his caseload was heavy and the discovery conducted by Brillon’s former attorneys was inadequate. On August 28, 2002, Brillon complained to the court that his fourth attorney had not responded to his calls or letters, and was not conducting an investigation; Brillon wrote that “[i]t is not this defendant’s intention to delay or compromise the orderly running of this court. It is this defendant’s intention to go to trial effectively.” On October 22, 2002, Brillon moved to fire his counsel because the attorney had done nothing to prepare for trial. At a November 26, 2002 hearing, the attorney indicated that he was in the process of quitting criminal defense, and his contract with the defender general’s office had expired. The court granted the motion to withdraw and directed the defender general to assign another attorney.
At a status conference on January 8, 2003, Brillon’s presumptive new (fifth) attorney stated that he had only been advised that he might be assigned to the case and had received no paperwork. The court ordered the defender general’s office to assign counsel within fourteen days. On January 15, the defender general stated that the fifth counsel had been assigned. On February 25, 2003, the new counsel filed a motion to extend deadlines because he had been out of state for three weeks. The court granted the motion.
On April 11, 2003, the fifth attorney moved to withdraw, citing modifications in his contract with the defender general’s office. For the following four months, Brillon was without counsel. On May 7, he filed a motion to dismiss, citing the delay in bringing him to trial. On August 1, 2003, the defender general formally assigned Brillon’s sixth attorney. On August 11, 2003, the court postponed a status conference to allow the attorney to review the case.
On September 8, November 5, and December 8, 2003, Brillon’s sixth attorney asked for more time. On February 23, 2004, the lawyer filed a motion to dismiss for lack of a speedy trial and in the interests of justice. The court denied the motion, ruling that much of the delay was Brillon’s fault, and Brillon had failed to demonstrate actual prejudice. The court noted that Brillon’s repeated demands to be brought to trial had been made absent a statement that counsel was prepared for trial.
Brillon was brought to trial in June 2004. He was convicted of second-degree domestic assault and sentenced to twelve to twenty years in prison. While the appeal was pending, Brillon and the State stipulated to a reduction of the sentence by half if Brillon dropped the appeal; the trial court refused to accept the stipulation.
On appeal, the Vermont Supreme Court applied the four-part test set out in Barker v. Wingo (1972) to determine whether the delay between the initiation of criminal proceedings and the resulting trial violates a defendant’s constitutional right to a speedy trial. The balancing test weighs the conduct of the prosecution and defense while assessing (1) the length of the delay, (2) the reason for the delay, (3) the extent to which the defendant asserted the right, and (4) the prejudice to the defendant. The first of these factors serves as a threshold trigger to set off examination of the other factors. In this case, the length of delay was extreme and the case was not particularly complicated; thus, not only was an examination of the other Barker factors triggered, but this factor weighed heavily in favor of Brillon.
The court found that the third factor also weighed in favor of Brillon, because he often and insistently requested to be brought to trial. In the few instances in which Brillon acquiesced in requests for continuances, he did so only because of his counsel’s lack of preparedness for trial. The court noted that defendants may not be forced to choose between the right to a speedy trial and the right to the effective assistance of counsel.
The fourth factor likewise favored Brillon. Though he had been unable to show actual prejudice, it is not a prerequisite to a finding of a violation under Barker, and in this case the delay was so egregious that it gave rise to a presumption of prejudice.
The second factor is the meat of this case. To determine how to weigh this factor, the court examined the facts and circumstances of the case closely. Importantly, the court refused to count the first year of Brillon’s pretrial incarceration in its speedy trial calculation (the period before June 11, 2002). The court acknowledged that this year was attributable to initial counsel’s strategy and activities, as well as Brillon threatening his third attorney, and should not be held against the State. However, the court ultimately found that the factor weighed in favor of Brillon. It reasoned that the delay was largely the fault of the inaction of assigned counsel, and “[t]he defender general’s office is part of the criminal justice system, and ultimately it is the court’s responsibility to assure that that system prosecutes defendants in a timely manner that comports with constitutional mandates.” Because the defender general is an arm of the state, Brillon’s egregious pretrial delays were the fault of the state.
Having concluded that all of the factors weighed against the state, the court vacated Brillon’s convictions and dismissed the charges against him with prejudice.
Petition for Certiorari
Vermont articulated two justifications for granting certiorari. First, the delay in Brillon’s case was caused solely by Brillon and his public defenders, and it should not be held against the State; to do so, the State contended, would be contrary to Court precedent and lower court convention and would cause chaos throughout the country. Second, policy concerns counsel against allowing the Vermont Supreme Court’s decision to stand: (a) public defenders and indigent defendants will have incentives to delay, (b) the decision extends Gideon to provide greater rights to indigent defendants than paying defendants, and (c) indigent defendants are actually worse off under the decision because (i) prosecutors and the courts will be compelled to deny requests for continuances made by public defenders, resulting in indigent defendants being rushed to trial, and (ii) prosecutors and courts will be loathe to allow changes in assigned counsel if any ensuing delays are chargeable to the state.
Opposing certiorari, Brillon advanced two brief arguments. First, the State misstates the lower court’s holding. Contrary to the State’s broad contention that its holding would throw speedy trial jurisprudence into chaos, the Vermont Supreme Court held narrowly that “a fourteen month period during which an indigent defendant either had no counsel or at all, or only nominal counsel who took no action in the case beyond a notice of appearance and a motion to withdraw, should be charged against the state’s criminal justice system and ultimately to the court’s, not the defendant.” Thus, there is no reason to fear that, as the State had asserted, all delays caused by an indigent defendant or public defender would now be charged to the state. Second, the State’s argument regarding the extension of Gideon was never raised in the lower court.
Merits briefing in the case largely mirrored those arguments raised in the certiorari stage of the case. All parties recounted at length the procedural history of Brillon’s pretrial delay. The State asserted that the lower court decision unfairly and unwisely converts public defenders into “government actors.” The United States, appearing as amicus, argued simply that delays caused by defendants and defense counsel weigh against the defendant under Barker; any other rule will allow defendants and defense counsel to cause delay and then reap the benefits. Moreover, public defenders work on behalf of indigent clients, not on behalf of the government. Lastly, the court below misweighed the Barker factors: the delay was largely Brillon’s own fault and was certainly not the result of a deliberate effort by the State to hamper Brillon’s defense, and Brillon showed no actual prejudice.
Amici National Governors Association et al. went further and asserted that defense counsel actually act “adverse to the State” in representing indigent clients, and if defense counsel cause prejudicial delay, the proper constitutional remedy is a determination of ineffective assistance of counsel. The states, writing as amici, were similarly offended by the idea that public defenders work as an arm of the state, writing that public defenders act as “adversaries of the government.”
In his brief, Brillon counters that the lower court has not converted public defenders into “government actors”; “the "government actor’ in this case is not the lawyer in his representational capacity, but the agency responsible for assigning counsel in its administrative capacity.” This is a proper assignment of responsibility under Barker. Indeed, “[d]elays caused by court congestion and negligence combined and overlapped with delays caused by the absence of legal representation,” and “[p]rosecutorial inaction and dilatory discovery after November 2002 extended the overall delay.” The Vermont Supreme Court applied Barker appropriately and in light of its superior “institutional knowledge and legal responsibilities regarding Vermont’s criminal court system.” The lower court was correct, and is entitled to deference.