556 U.S. 81 | SCOTUS | 2009
OCTOBER TERM, 2008 1
(Slip Opinion) Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES Syllabus VERMONT v . BRILLON CERTIORARI TO THE SUPREME COURT OF VERMONT No. 08–88. Argued January 13, 2009—Decided March 9, 2009 In July 2001, respondent Brillon was arrested on felony domestic as- sault and habitual offender charges. Nearly three years later, in June 2004, he was tried by jury, found guilty as charged, and sen- tenced to 12 to 20 years in prison. During the time between his ar- rest 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 re- ported 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 trial court denied Brillon’s motion to dismiss for want of a speedy trial. The Vermont Supreme Court, however, reversed, hold- ing that Brillon’s conviction must be vacated, and the charges against him dismissed, because the State did not accord him the speedy trial required by the Sixth Amendment. Citing the balancing test this Court stated in Barker v. Wingo , 407 U. S. 514, the Vermont Su- preme Court concluded that all four 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,” id., at 530—weighed against the State. Weighing heavily in Brillon’s favor, the Vermont court said, the three-year delay in bringing him to trial was “ex- treme.” In assessing the reasons for that delay, the court separately considered the period of each counsel’s representation. It acknowl- edged that the first year, when Brillon was represented by his first and third lawyers, should not count against the State. But the court counted much of the remaining two years against the State. Delays
Syllabus in that period, the court determined, were caused, for the most part, by the failure or unwillingness of several of the assigned counsel, over an inordinate period of time, to move the case forward. As for the third and fourth Barker v. Wingo factors, the court found that Brillon repeatedly and adamantly demanded a trial and that his lengthy pretrial incarceration was prejudicial.
Held: 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 defen- dants they represent. Pp. 6–11.
(a) Primarily at issue here is the reason for the delay in Brillon’s trial. In applying Barker , the Court has asked “whether the govern- ment or the criminal defendant is more to blame for th[e] delay.” Doggett v. United States , 505 U. S. 647, 651. Delay “to hamper the defense” weighs heavily against the prosecution, Barker , 407 U. S., at 531, while delay caused by the defense weighs against the defendant, id., at 529. Because “the attorney is the [defendant’s] agent when acting, or failing to act, in furtherance of the litigation,” delay caused by the defendant’s counsel is charged against the defendant. Cole- man v. Thompson , 501 U. S. 722, 753. The same principle applies whether counsel is privately retained or publicly assigned, for “ ‘[o]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is pri- vately retained, appointed, or serving in a legal aid or defender pro- gram.’ ” Polk County v. Dodson , 454 U. S. 312, 318. Unlike a prose- cutor or the court, assigned counsel ordinarily is not considered a state actor. Pp. 6–8.
(b) Although the balance arrived at in close cases ordinarily would not prompt this Court’s review, the Vermont Supreme Court made a fundamental error in its application of Barker that calls for this Court’s correction. The court erred in attributing to the State delays caused by the failure of several assigned counsel to move Brillon’s case forward and in failing adequately to take into account the role of Brillon’s disruptive behavior in the overall balance. Pp. 8–11.
(1) An assigned counsel’s failure to move the case forward does not warrant attribution of delay to the State. Most of the delay the Vermont court attributed to the State must therefore be attributed to Brillon as delays caused by his counsel, each of whom requested time extensions. Their inability or unwillingness to move the case forward may not be attributed to the State simply because they are assigned counsel. 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
Syllabus grounds. Trial courts might well respond by viewing continuance re- quests 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 re- tained counsel’s requests for time extensions. There is no justifica- tion for treating defendants’ speedy-trial claims differently based on whether their counsel is privately retained or publicly assigned. Pp. 9–10.
(2) The Vermont Supreme Court further erred by treating the period of each counsel’s representation discretely. The court failed appropriately to take into account Brillon’s role during the first year of delay. Brillon sought to dismiss his first attorney on the eve of trial. His strident, aggressive behavior with regard to his third at- torney further impeded prompt trial and likely made it more difficult for the Defender General’s office to find replacement counsel. Absent Brillon’s efforts to force the withdrawal of his first and third attor- neys, no speedy-trial issue would have arisen. Pp. 10–11.
(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 could be charged to the State. Cf. Polk County , 454 U. S., at 324–325. But the Vermont Su- preme Court made no determination, and nothing in the record sug- gests, that institutional problems caused any part of the delay in Brillon’s case. P. 11.
955 A. 2d 1108, reversed and remanded. G INSBURG , J,. delivered the opinion of the Court, in which R OBERTS , C. J., and S CALIA , K ENNEDY , S OUTER , T HOMAS , and A LITO , JJ., joined. B REYER , J., filed a dissenting opinion, in which S TEVENS , J., joined.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES _________________ No. 08–88 _________________
VERMONT, PETITIONER v. MICHAEL BRILLON ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
VERMONT [March 9, 2009] J USTICE G INSBURG delivered the opinion of the Court. 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 Supreme Court charged against Brillon the delays associated with those periods, but charged against the State periods in which assigned counsel failed “to move the case forward.” 955 A. 2d 1108, 1121, 1122 (2008).
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 1111. But, as the Vermont Supreme Court acknowledged, id., at 1126, the record does not establish any such institutional break down.
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 moved for a continuance, but the State objected, and the trial court denied the motion.
On February 22, four days before the jury draw, Am —————— [1] Vermont’s Defender General has “the primary responsibility for providing needy persons with legal services.” Vt. Stat. Ann., Tit. 13, §5253(a) (1998). These services may be provided “personally, through public defenders,” or through contract attorneys. Ibid. mons 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 an nounced: “You’re fired, Rick.” App. 187. Three days later, the trial court—over the State’s objection—granted Am mons’ 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 Bril lon’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 sev eral of Brillon’s allegations, noted his disagreement with Brillon’s trial strategy, 4 and insisted he had plenty of time —————— [2] The State expressed its concern that the continuance request was “just part and parcel of an effort by the defense to have the Court not hear this matter.” App. 180. Under Vermont procedures, the judge presiding over the trial was scheduled to “rotate” out of the county where Brillon’s case was pending in March 2002. See id., ¶6, at 109. Thus, a continuance past March would have caused a different judge to preside over Brillon’s trial, despite the denial of his motion to recuse the initial judge. Ammons requested a continuance until April. [3] Ammons also cited as cause to withdraw, “certain irreconcilable differences in preferred approach between Mr. Brillon and counsel as to trial strategy, as well as other legitimate legal decisions.” Id., ¶2, at 104. [4] Specifically, Altieri appeared reluctant to follow Brillon’s tactic that to prepare. The State opposed Brillon’s motion as well. Near the end of the hearing, however, Altieri moved to withdraw on the ground that Brillon had threatened his life during a break in the proceedings. The trial court granted Brillon’s motion to dismiss Altieri, but warned Brillon that “this is somewhat of a dubious victory in your case because it simply prolongs the time that you will remain in jail until we can bring this matter to trial.” Id., at 226.
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.” 955 A. 2d, at 1119. Cf. post , at 2.
Brillon’s fifth counsel, David Sleigh, was not assigned until January 15, 2003; Brillon was without counsel dur ing 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 —————— he “bring in a lot of people” at trial, “some of them young kids and relatives . . . in an attempt by Mr. Brillon—this is his theory—I don’t want to use the words trash, [to] impeach [the victim].” Id., at 216–217. “modifications to [his] firm’s contract with the Defender General.” Id., at 158.
Brillon was then without counsel for the next four months. On June 20, the Defender General’s office noti fied the court that it had received “funding from the legis lature” and would hire a new special felony unit defender for Brillon. Id., at 159. On August 1, Kathleen Moore was appointed as Brillon’s sixth counsel. The trial court set November 7 as the deadline for motions, but granted several extensions in accord with the parties’ stipulation. On February 23, 2004, Moore filed a motion to dismiss for lack of a speedy trial. The trial court denied the motion on April 19.
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 Bril lon’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 bring ing Brillon to trial was “extreme” and weighed heavily in his favor. See 955 A. 2d, at 1116. In assessing the rea sons for that delay, the Vermont Supreme Court sepa rately considered the period of each counsel’s representa tion. It acknowledged that the first year, when Brillon was represented by Ammons and Altieri, should not count against the State. Id., 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 defendant’s assigned counsel, over an inordinate period of time, to move his case forward.” Id., at 1122. As for the third and fourth factors, the court found that Brillon “repeatedly and adamantly demanded to be tried,” ibid. , and that his “lengthy pretrial incarceration” was prejudi cial, despite his insubstantial assertions of evidentiary prejudice, id., at 1125.
The dissent strongly disputed the majority’s characteri zation 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 1127. But for Brillon’s “re peated 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 1128.
We granted certiorari, 554 U. S. ___ (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,” “slip pery,” 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 circum —————— [5] Vermont’s Constitution contains a speedy-trial clause which reads: “[I]n all prosecutions for criminal offenses, a person hath a right to . . . a speedy public trial by an impartial jury . . . .” Vt. Const., Ch. I, Art. 10. Notably, the Vermont Supreme Court made no ruling under the State’s own prescription, but instead relied solely on the Federal Constitution. Because it did so, our review authority was properly invoked and exercised. See Oregon v. Hass , 420 U. S. 714, 719–720 (1975); Ginsburg, Book Review, 92 Harv. L. Rev. 340, 343–344 (1978). But see post , at 1–4. stances.” 407 U. S., at 522 (internal quotation marks omitted). In Barker , the Court refused to “quantif[y]” the right “into a specified number of days or months” or to hinge the right on a defendant’s explicit request for a speedy trial. Id., at 522–525. Rejecting such “inflexible approaches,” Barker established a “balancing test, in which the conduct of both the prosecution and the defen dant are weighed.” Id., at 529, 530. “[S]ome of the fac tors” that courts should weigh include “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Ibid.
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). Delib erate 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 over crowded 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 ac cused’s advantage” because “witnesses may become un available 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,” delay caused by the defendant’s counsel is also charged against the defendant. Coleman v. Thompson , 501 U. S. 722, 753 (1991). 6 The same principle applies whether counsel is privately retained or publicly assigned, for “[o]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.” Polk County v. Dodson , 454 U. S. 312, 318 (1981) (internal quotation marks omit ted). “Except for the source of payment,” the relationship between a defendant and the public defender representing him is “identical to that existing between any other lawyer and client.” Ibid. Unlike a prosecutor or the court, as signed counsel ordinarily is not considered a state actor. 7
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 applica tion of Barker that calls for this Court’s correction. The —————— [6] Several States’ speedy-trial statutes expressly exclude from compu tation of the time limit continuances and delays caused by the defen dant or defense counsel. See, e.g. , Cal. Penal Code Ann. §1381 (West 2000); Ill. Comp. Stat., ch. 725, §5/103–5(f) (2006); N. Y. Crim. Proc. Law Ann. §30.30(4) (West Supp. 2009); Alaska Rule Crim. Proc. 45(d) (1993); Ark. Rule Crim. Proc. 28.3 (2006); Ind. Rule Crim. Proc. 4(A) (2009). See also Brief for National Governors Association et al. as Amici Curiae 17–18, and n. 12. [7] A public defender may act for the State, however, “when making hiring and firing decisions on behalf of the State,” and “while perform ing certain administrative and possibly investigative functions.” Polk County v. Dodson , 454 U. S. 312, 325 (1981). Vermont Supreme Court erred in attributing to the State delays caused by “the failure of several assigned counsel . . . to move his case forward,” 955 A. 2d, at 1122, and in failing adequately to take into account the role of Brillon’s disruptive behavior in the overall balance.
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 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 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 pur poses 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 8.
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 continu ances. 8 Their “inability or unwillingness . . . to move the —————— [8] The State conceded before the Vermont Supreme Court that the period of Sleigh’s representation—along with a six-month period of no representation—was properly attributed to the State. 955 A. 2d 1108, case forward,” 955 A. 2d, at 1121, may not be attributed to the State simply because they are assigned counsel.
A contrary conclusion could encourage appointed coun sel to delay proceedings by seeking unreasonable continu ances, hoping thereby to obtain a dismissal of the indict ment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by ap pointed 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 dis cretely. The factors identified in Barker “have no talis manic 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 —————— 1120–1121 (2008). The State sought to avoid its concession at oral argument before this Court, but in the alternative, noted that the period of Sleigh’s representation “is really inconsequential.” Tr. of Oral Arg. 5–6. We agree that in light of the three-year delay caused mostly by Brillon, the attribution of Sleigh’s three-month representation does not tip the balance for either side. 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 weighted heavily against the [State],” Barker , 407 U. S., at 531, so too should a defen dant’s deliberate attempt to disrupt proceedings be weighted heavily against the defendant. Absent Brillon’s deliberate efforts to force the withdrawal of Ammons and Altieri, no speedy-trial issue would have arisen. The effect of these earlier events should have been factored into the court’s analysis of subsequent delay. 9
C
The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay result ing from a systemic “breakdown in the public defender system,” 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 as signed. “[A]ny inquiry into a speedy trial claim necessi tates 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 —————— [9] Brillon lacked counsel for some six months. In light of his own role in the initial periods of delay, however, this six-month period, even if attributed to the State, does not establish a speedy-trial violation. further proceedings not inconsistent with this opinion.
It is so ordered. B REYER , J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 08–88 _________________
VERMONT, PETITIONER v. MICHAEL BRILLON ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
VERMONT [March 9, 2009] J USTICE B REYER , with whom J USTICE S TEVENS joins, dissenting. 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 ambigu ous. 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 3–4, 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 pro ceedings against him,” the Vermont Supreme Court was explicit that this time period “do[es] not count . . . against the [S]tate.” 955 A. 2d 1108, 1120 (2008).
B REYER , J., dissenting 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 con tract 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 the case forward,” and made only one brief appearance at a status conference in mid-August. 955 A. 2d, at 1121. I believe it fairer to characterize this period, not as a period in which “assigned counsel” failed to move the case forward, ante , at 1, but as a period in which Brillon, in practice, had no assigned counsel . And, given that the State conceded its responsibility for delays caused by another defender who resigned for “contractual reasons,” see infra at 3, it is hardly unreasonable that the Vermont Supreme Court counted this period of delay against the State.
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 conces sion 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 represen tation 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. Bril lon was left without counsel for a period of nearly six months. The State explained in conceding its responsibil
B REYER , J., dissenting ity 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 rea sons.” 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 opin ion 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 docu ments were needed from the State,” 955 A. 2d, at 1120– 1121. Treating the opinion as charging the State on the basis of the defender’s conduct is made more difficult by the fact that Brillon did not argue below that Kathleen Moore, his defender during this period, caused any delays. Appellant’s Reply Brief in No. 2005–167 (Vt.), 2007 WL 990004, *7.
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 Vt. Stat. Ann., Tit. 13, §§5204, 5272 (1998); see also Vt. Rule Crim. Proc. 44 (2003). It consequently warrants leeway when it de cides whether a particular failing is properly attributed to assigned counsel or instead to the failure of the defender general’s office properly to assign counsel. Ante , at 11. I do not believe the Vermont Supreme Court exceeded that
B REYER , J., dissenting leeway here. And I would affirm its decision. With respect, I dissent.
