Vermont v. Brillon

556 U.S. _

Case Year: 2009

Case Ruling: 7-2, Reversed and Remanded

Opinion Justice: Alito

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Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Ginsburg, Kennedy, Roberts, Scalia, Souter, Thomas


1st Concurring Opinion



1st Dissenting Opinion

Author: Breyer

Joiner(s): Stevens

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In July 2001 Michael Brillon was arrested for striking his girlfriend during an argument. In Vermont, domestic assault normally would be punishable by no more than one year in prison. Brillon, however, had been previously accused of slashing his girlfriend's tires, and a district court had issued an order that forbade him from harassing her. The existence of this order enabled Vermont to charge Brillon with second-degree aggravated assault, a felony offense. Moreover, because Brillon had three prior felony convictions, he was also charged as a habitual offender--a crime that carries a possible life sentence.

Nearly three years after his arrest, Brillon was tried by a jury, which found him guilty of both felony domestic assault and habitual offender charges. He was sentenced to twelve to twenty years in prison. Over the course of these three years, at least six different attorneys were assigned to represent him. Brillon filed a motion to dismiss for want of a speedy trial--a right guaranteed by the Sixth Amendment--but the district court denied the motion. When the case reached the Vermont Supreme Court, the justices reversed. The Vermont court applied the balancing test in Barker v. Wingo (1972) to examine whether Brillon was unduly prejudiced by the three-year delay. In the court's determination, the length of delay, reason for delay, defendant's assertion of his right, and prejudice to the defendant all weighed against the state. Vermont subsequently petitioned for certiorari to the U.S. Supreme Court to resolve whether delays caused by public defenders, or those resulting from a state's system of public defense, can deprive a criminal defendant of his right to a speedy trial.



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." It is "consistent with delays and depend[ent] upon circumstances." In Barker [ v. Wingo (1972)], 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. Rejecting such "inflexible approaches,"Barker established a "balancing test, in which the conduct of both the prosecution and the defendant are weighed." "[S]ome of the factors" 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."

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," and in applying Barker, we have asked "whether the government or the criminal defendant is more to blame for th[e] delay." Deliberate delay "to hamper the defense" weighs heavily against the prosecution. "[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."

In contrast, delay caused by the defense weighs against the defendant. . . . 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.

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. 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." "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." Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor. . . .

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. 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."

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," the individual counsel here acted only on behalf of Brillon, not the State. . . . 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. 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 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. . . . 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. 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 . . . [T]he 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. 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. . . .

. . . 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. It consequently warrants leeway when it decides 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. I do not believe the Vermont Supreme Court exceeded that leeway here. And I would affirm its decision.