VERMONT v. BRILLON
No. 08-88
Supreme Court of the United States
March 9, 2009
556 U.S. 81
Argued January 13, 2009
Leondra R. Kruger argued the cause for the United States as amicus curiae urging reversal. With her on the brief were former Solicitor General Garre, Acting Assistant Attorney General Friedrich, then-Deputy Solicitor General Dreeben, and Joseph C. Wyderko.
William A. Nelson argued the cause for respondent. With him on the brief was Donald B. Verrilli, Jr.*
This case concerns the Sixth Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” Michael Brillon, defendant below, respondent here, was arrested in July 2001 on felony domestic assault and habitual offender charges. Nearly three years later, in June 2004, he was tried by jury, found guilty as charged, and sentenced to 12 to 20 years in prison. The Vermont Supreme Court vacated Brillon‘s conviction and held that the charges against him must be dismissed because he had been denied his right to a speedy trial.
During the time between Brillon‘s arrest and his trial, at least six different attorneys were appointed to represent him. Brillon “fired” the first, 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. The Vermont
We hold that the Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent. For a total of some six months of the time that elapsed between Brillon‘s arrest and his trial, Brillon lacked an attorney. The State may be charged with those months if the gaps resulted from the trial court‘s failure to appoint replacement counsel with dispatch. Similarly, the State may bear responsibility if there is “a breakdown in the public defender system.” Id., at 479-480, 955 A. 2d, at 1111. But, as the Vermont Supreme Court acknowledged, id., at 500, 955 A. 2d, at 1126, the record does not establish any such institutional breakdown.
I
On July 27, 2001, Michael Brillon was arrested after striking his girlfriend. Three days later he was arraigned in state court in Bennington County, Vermont, and charged with felony domestic assault. His alleged status as a habitual offender exposed him to a potential life sentence. The court ordered him held without bail.
Richard Ammons, from the county public defender‘s office, was assigned on the day of arraignment as Brillon‘s first counsel.1 In October, Ammons filed a motion to recuse the trial judge. It was denied the next month and trial was scheduled for February 2002. In mid-January, Ammons
On February 22, four days before the jury draw, Ammons again moved for a continuance, citing his heavy workload and the need for further investigation. Ammons acknowledged that any delay would not count (presumably against the State) for speedy-trial purposes. The State opposed the motion,2 and at the conclusion of a hearing, the trial court denied it. Brillon, participating in the proceedings through interactive television, then announced: “You‘re fired, Rick.” App. 187. Three days later, the trial court—over the State‘s objection—granted Ammons’ motion to withdraw as counsel, citing Brillon‘s termination of Ammons and Ammons’ statement that he could no longer zealously represent Brillon.3 The trial court warned Brillon that further delay would occur while a new attorney became familiar with the case. The same day, the trial court appointed a second attorney, but he immediately withdrew based on a conflict.
On March 1, 2002, Gerard Altieri was assigned as Brillon‘s third counsel. On May 20, Brillon filed a motion to dismiss Altieri for, among other reasons, failure to file motions, “[v]irtually no communication whatsoever,” and his lack of diligence “because of heavy case load.” Id., ¶¶ 2, 5, at 113-114. At a June 11 hearing, Altieri denied several of Brillon‘s allegations, noted his disagreement with Brillon‘s trial strat-
That same day, the trial court appointed Paul Donaldson as Brillon‘s fourth counsel. At an August 5 status conference, Donaldson requested additional time to conduct discovery in light of his caseload. A few weeks later, Brillon sent a letter to the court complaining about Donaldson‘s unresponsiveness and lack of competence. Two months later, Brillon filed a motion to dismiss Donaldson—similar to his motion to dismiss Altieri—for failure to file motions and “virtually no communication whatsoever.” Id., ¶¶ 1, 2, at 115-116. At a November 26 hearing, Donaldson reported that his contract with the Defender General‘s office had expired in June and that he had been in discussions to have Brillon‘s case reassigned. The trial court released Donaldson from the case “[w]ithout making any findings regarding the adequacy of [Donaldson]‘s representation.” 183 Vt., at 490, 955 A. 2d, at 1119. Cf. post, at 95-96.
Brillon‘s fifth counsel, David Sleigh, was not assigned until January 15, 2003; Brillon was without counsel during the intervening two months. On February 25, Sleigh sought extensions of various discovery deadlines, noting that he had been in trial out of town. App. 117. On April 10, however, Sleigh withdrew from the case, based on “modifications to [his] firm‘s contract with the Defender General.” Id., at 158.
The case finally went to trial on June 14, 2004. Brillon was found guilty and sentenced to 12 to 20 years in prison. The trial court denied a post-trial motion to dismiss for want of a speedy trial, concluding that the delay in Brillon‘s trial was “in large part the result of his own actions” and that Brillon had “failed to demonstrate prejudice as a result of [the] pre-trial delay.” App. to Pet. for Cert. 72.
On appeal, the Vermont Supreme Court held 3 to 2 that Brillon‘s conviction must be vacated and the charges dismissed for violation of his Sixth Amendment right to a speedy trial. Citing the balancing test of Barker v. Wingo, 407 U. S. 514 (1972), the majority concluded that all four of the factors described in Barker—“[l]ength of delay, the reason for the delay, the defendant‘s assertion of his right, and prejudice to the defendant“—weighed against the State. Id., at 530.
The court first found that the three-year delay in bringing Brillon to trial was “extreme” and weighed heavily in his favor. See 183 Vt., at 486, 955 A. 2d, at 1116. In assessing the reasons for that delay, the Vermont Supreme Court separately considered the period of each counsel‘s representation. It acknowledged that the first year, when Brillon was represented by Ammons and Altieri, should not count against the State. Id., at 492, 955 A. 2d, at 1120. But the court counted much of the remaining two years against the State for delays “caused, for the most part, by the failure of several of defend-
The dissent strongly disputed the majority‘s characterization of the periods of delay. It concluded that “the lion‘s share of delay in this case is attributable to defendant, and not to the state.” Id., at 502, 955 A. 2d, at 1127. But for Brillon‘s “repeated maneuvers to dismiss his lawyers and avoid trial through the first eleven months following arraignment,” the dissent explained, “the difficulty in finding additional counsel would not have arisen.” Id., at 504, 955 A. 2d, at 1128.
We granted certiorari, 554 U. S. 945 (2008),5 and now reverse the judgment of the Vermont Supreme Court.
II
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy trial.” The speedy-trial right is “amorphous,” “slippery,” and “necessarily relative.” Barker, 407 U. S., at 522 (quoting Beavers v. Haubert, 198 U. S. 77, 87 (1905)). It is “consistent with delays and depend[ent] upon circumstances.” 407 U. S., at 522 (internal quotation marks omitted). In Barker, the Court refused to “quantif[y]” the right
Primarily at issue here is the reason for the delay in Brillon‘s trial. Barker instructs that “different weights should be assigned to different reasons,” id., at 531, and in applying Barker, we have asked “whether the government or the criminal defendant is more to blame for th[e] delay,” Doggett v. United States, 505 U. S. 647, 651 (1992). Deliberate delay “to hamper the defense” weighs heavily against the prosecution. Barker, 407 U. S., at 531. “[M]ore neutral reason[s] such as negligence or overcrowded courts” weigh less heavily “but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” Ibid.
In contrast, delay caused by the defense weighs against the defendant: “[I]f delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine.” Id., at 529. Cf. United States v. Loud Hawk, 474 U. S. 302, 316 (1986) (noting that a defendant whose trial was delayed by his interlocutory appeal “normally should not be able . . . to reap the reward of dismissal for failure to receive a speedy trial“). That rule accords with the reality that defendants may have incentives to employ delay as a “defense tactic“: delay may “work to the accused‘s advantage” because “witnesses may become unavailable or their memories may fade” over time. Barker, 407 U. S., at 521.
Because “the attorney is the [defendant‘s] agent when acting, or failing to act, in furtherance of the litigation,” de-
III
Barker‘s formulation “necessarily compels courts to approach speedy trial cases on an ad hoc basis,” 407 U. S., at 530, and the balance arrived at in close cases ordinarily would not prompt this Court‘s review. But the Vermont Supreme Court made a fundamental error in its application of Barker that calls for this Court‘s correction. The Vermont Supreme Court erred in attributing to the State delays caused by “the failure of several assigned counsel . . . to move his case forward,” 183 Vt., at 494, 955 A. 2d, at 1122,
A
The Vermont Supreme Court‘s opinion is driven by the notion that delay caused by assigned counsel‘s “inaction” or failure “to move [the] case forward” is chargeable to the State, not the defendant. Id., at 479, 494, 955 A. 2d, at 1111, 1122. In this case, that court concluded, “a significant portion of the delay in bringing defendant to trial must be attributed to the state, even though most of the delay was caused by the inability or unwillingness of assigned counsel to move the case forward.” Id., at 494, 955 A. 2d, at 1121.
We disagree. An assigned counsel‘s failure “to move the case forward” does not warrant attribution of delay to the State. Contrary to the Vermont Supreme Court‘s analysis, assigned counsel generally are not state actors for purposes of a speedy-trial claim. While the Vermont Defender General‘s office is indeed “part of the criminal justice system,” ibid., the individual counsel here acted only on behalf of Brillon, not the State. See Polk County, 454 U. S., at 320-322 (rejecting the view that public defenders act under color of state law because they are paid by the State). See also supra, at 90-91.
Most of the delay that the Vermont Supreme Court attributed to the State must therefore be attributed to Brillon as delays caused by his counsel. During those periods, Brillon was represented by Donaldson, Sleigh, and Moore, all of whom requested extensions and continuances.8 Their “inability or unwillingness . . . to move the case forward,” 183
A contrary conclusion could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by appointed counsel with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic. Yet the same considerations would not attend a privately retained counsel‘s requests for time extensions. We see no justification for treating defendants’ speedy-trial claims differently based on whether their counsel is privately retained or publicly assigned.
B
In addition to making assigned counsel‘s “failure . . . to move [the] case forward” the touchstone of its speedy-trial inquiry, the Vermont Supreme Court further erred by treating the period of each counsel‘s representation discretely. The factors identified in Barker “have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” 407 U. S., at 533. Yet the Vermont Supreme Court failed appropriately to take into account Brillon‘s role during the first year of delay in “the chain of events that started all this.” Tr. of Oral Arg. 46.
Brillon sought to dismiss Ammons on the eve of trial. His strident, aggressive behavior with regard to Altieri, whom he threatened, further impeded prompt trial and likely made it more difficult for the Defender General‘s office to find replacement counsel. Even after the trial court‘s warning regarding delay, Brillon sought dismissal of yet another attorney, Donaldson. Just as a State‘s “deliberate attempt to delay the trial in order to hamper the defense should be
C
The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay resulting from a systemic “breakdown in the public defender system,” 183 Vt., at 479-480, 955 A. 2d, at 1111, could be charged to the State. Cf. Polk County, 454 U. S., at 324-325. But the Vermont Supreme Court made no determination, and nothing in the record suggests, that institutional problems caused any part of the delay in Brillon‘s case.
In sum, delays caused by defense counsel are properly attributed to the defendant, even where counsel is assigned. “[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case,” Barker, 407 U. S., at 522, and the record in this case does not show that Brillon was denied his constitutional right to a speedy trial.
*
*
*
For the reasons stated, the judgment of the Vermont Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
We granted certiorari in this case to decide whether delays caused “solely” by a public defender can be “charged against the State pursuant to the test in Barker v. Wingo, 407 U. S. 514 (1972).” Pet. for Cert. i, ¶ 1. The case, in my view, does not squarely present that question, for the Vermont Supreme Court, when it found Michael Brillon‘s trial unconstitutionally delayed, did not count such delays against the State. The court‘s opinion for the most part makes that fact clear; at worst some passages are ambiguous. Given these circumstances, I would dismiss the writ of certiorari as improvidently granted.
I
The relevant time period consists of slightly less than three years, stretching from July 2001, when Brillon was indicted, until mid-June 2004, when he was convicted and sentenced. In light of Brillon‘s improper behavior, see ante, at 85-87, the Vermont Supreme Court did not count months 1 through 12 (mid-July 2001 through mid-June 2002) against the State. Noting the objection that Brillon had sought to “intentionally sabotag[e] the criminal proceedings against him,” the Vermont Supreme Court was explicit that this time period “do[es] not count . . . against the [S]tate.” 183 Vt. 475, 492, 955 A. 2d 1108, 1120 (2008).
The Vermont Supreme Court did count months 13 through 17 (mid-June 2002 through November 2002) against the State. It did so under circumstances where (1) Brillon‘s counsel, Paul Donaldson, revealed that his contract with the defender general‘s office had expired in June 2002—shortly after (perhaps before!) he took over as Brillon‘s counsel, App. 232-233, (2) he stated that this case was “basically the beginning of [his] departure from the contract,” ibid., and (3) he made no filings, missed several deadlines, did “little or nothing” to “move his case forward,” and made only one brief appearance at a status conference in mid-August, 183 Vt.,
The Vermont Supreme Court also counted months 18 through 25 (the end of November 2002 through July 2003) against the State. It did so because the State conceded in its brief that this period of delay ”cannot be attributed to the defendant.” App. 78 (emphasis added). This concession is not surprising in light of the fact that during much of this period, Brillon was represented by David Sleigh, a contract attorney, who during the course of his representation filed nothing on Brillon‘s behalf except a single motion seeking to extend discovery. The record reflects no other actions by Sleigh other than a letter sent to Brillon informing him that “[a]s a result of modifications to our firm‘s contract with the Defender General, we will not be representing you in your pending case.” Id., at 158. Brillon was left without counsel for a period of nearly six months. The State explained in conceding its responsibility for this delay that Sleigh had been forced to withdraw “for contractual reasons,” and that the defender general‘s office had been unable to replace him “for funding reasons.” Id., at 78.
Finally, the Vermont Supreme Court counted against the State the last 11 months—from August 2003 to mid-June 2004. But it is impossible to conclude from the opinion whether it did so because it held the State responsible for the defender‘s failure to “move the case forward,” or for other reasons having nothing to do with counsel, namely, the judge‘s unavailability, see id., at 138, or the fact that “the [case] files were incomplete” and “additional documents were
II
In sum, I can find no convincing reason to believe the Vermont Supreme Court made the error of constitutional law that the majority attributes to it. Rather than read ambiguities in its opinion against it, thereby assuming the presence of the error the Court finds, I would dismiss the writ as improvidently granted. As a majority nonetheless wishes to decide the case, I would note that the Vermont Supreme Court has considerable authority to supervise the appointment of public defenders. See
With respect, I dissent.