Case delays attributable to defendant

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Delays caused by appointed defense counsel can't be attributed to the state when considering whether a defendant's right to a speedy trial was violated.

Justice Ruth Bader Ginsburg wrote for the U.S. Supreme Court on Mar. 9, "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."

Almost three years lapsed between the time Michael Brillon was arrested (and held without bail) until he was ultimately tried and convicted.

Over the course of that time, he had six attorneys.

The first, he fired four days before trial. The second withdrew immediately because of a conflict of interest.

The third was permitted to withdraw after Brillon threatened his life.

The fourth attorney represented Brillon for six months, but did nothing during that time. For two months, Brillon had no counsel. The fifth attorney represented him for three months, but like the fourth, did nothing.

Brillon was then without counsel for another four months.

Finally, his sixth appointed counsel was appointed, and roughly 10 months later, the case went to trial.

The Vermont Supreme Court held that Brillon's right to a speedy trial was violated. Although it attributed fault to Brillon because of his actions with respect to the first and third attorneys, the court blamed the state for the failures of attorneys four and five to move the case forward.

The U.S. Supreme Court granted review, and reversed. Justice Stephen Breyer dissented, in an opinion joined by Justice John Paul Stevens.

One of the four factors that courts must consider in assessing whether the right to a speedy trial was denied is "the reason for the delay." Barker v. Wingo, 407 U.S. 514, 529-30 (1972).

The majority held it was improper for the Vermont Supreme Court to attribute the delays of Brillon's fourth and fifth attorneys to the state, citing the general rule that assigned counsel is not a state actor. Polk County v. Dodson, 454 U.S. 312, 318 (1981).

Regardless whether defense counsel is privately retained or publicly appointed, the court concluded that the delays caused by a defendant's attorney must be attributed to the defendant, rather than the state.

The court also relied on public policy grounds for its holding.

"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," Ginsburg wrote. "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."

The majority also took issue with the Vermont court's methodology — looking at the period of each attorney's representation discretely.

The court concluded that that the Vermont court failed to take into account that the "chain of events" began with Brillon's misconduct with respect to the first and third attorneys.

"Absent Brillon's deliberate efforts to force the withdrawal of Ammons and Altieri, no speedy-trial issue would have arisen," Justice Ginsburg wrote. "The effect of these earlier events should have been factored into the court's analysis of subsequent delay."

Justice Breyer dissented, concluding that the case should have dismissed as improvidently granted.

Addressing the merits, nonetheless, the dissent concluded that, given the supervisory authority that the Vermont Supreme Court has over the appointment of public defenders, the court should defer to its opinion whether Brillon's speedy trial rights were violated.

The majority rejected this position in a footnote, because the Vermont court relied solely on the Federal Constitution.

Deborah Smith, director of the State Public Defender's Assigned Counsel Division, said she was surprised that the Vermont courts allowed so many substitutions of counsel.

Smith noted that it's always a difficult issue when clients want to discharge an appointed attorney, sometimes for legitimate reasons, and sometimes not.

"At some point, though, courts need to ask what their expectation is — whether it really will be different with the next attorney, or the attorney after that, when it is clear that a client will have difficulty cooperating with any attorney," Smith said.

It was Brillon's pattern of difficulty with attorneys that led the Supreme Court to reject the Vermont court's consideration of each delay discretely, she said.

"I read the court's opinion as saying that, when a client has difficulty cooperating with all his attorneys, that pattern is something that needs to be looked at as a whole, rather than parsing the representation event by event," Smith said.

Analysis

No published Wisconsin court opinions directly address this issue, but the court's opinion will affect the law in Wisconsin, if for no other reason, simply because the court rejects the idea of reviewing each period of delay "discretely."

Wisconsin courts traditionally review speedy trial claims the same way the Vermont court did — divvy up the time between arrest and trial, and place blame with either the state or the defendant for each period of delay.

The Supreme Court, however, places the whole blame on the defendant here, because he started the "chain of events" by firing his first attorney four days before trial, and threatening to kill his third attorney.

The court even refused to place blame with the state for the six month period when Brillon had no counsel at all. In a footnote, the court wrote, "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."

Taking this reasoning to its logical extreme, if a defendant is the first one to blame for the case not going promptly to trial, then the state has a license to delay as long as it can, with impunity.

Obviously, no court would countenance deliberate delay by the state. Still, the court's broad language will make it difficult for a defendant who, having once delayed trial himself, claims the state later violated his speedy trial rights.

In some respects, the opinion is of benefit to criminal defendants, even though the defendant in this case lost.

As the majority noted, had the court held to the contrary, trial courts would, out of necessity, have to get very conservative when it came to allowing appointed counsel to withdraw.

Determining whether the prosecution or defense was responsible for a period of delay is easy; determining whether a defendant or his attorney was responsible for a delay would be a messy, fact-intensive task.

Some circuit courts would likely play it safe by not allowing appointed attorneys to withdraw, and ordering trials to proceed, even when withdrawal would be in the interests of justice.