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The dissent gets it right in Supreme Court’s latest speedy trial decision

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The United States Supreme Court ordinarily rejects criminal cases for review absent a material split of opinions in the state appellate courts, federal appellate courts, or both, unless the Court finds a compelling Constitutional question to justify review nonetheless.

Apparently intended as a pre-emptive ruling rather than as an effort to resolve any split among lower courts, yesterday the U.S. Supreme Court reversed the Vermont Supreme Court’s reversal and vacation of a felony assault conviction upon the Vermont court’s determination that the defendant’s Sixth Amendment speedy trial rights had been violated. Vermont v. Brillon, ___ U.S. ___ (March 9, 2009).

Michael Brillon went through a series of six lawyers before his case went to trial and after his July 21, 2001, arrest. Brillon successfully asked the court to replace at least two of the lawyers, with one of them joining in the request on the claim that Brillon had threatened his life during the trial court hearing on Brillon’s motion to dismiss his court-appointed lawyer. Brillon’s fourth and fifth lawyers moved to withdraw from the case due to the expiration or modification of their contracts with the Defender General, which apparently is the office that arranges payment of privately-employed court-appointed counsel. The fourth court-appointed lawyer informed the trial court on November 26, 2002 that his contract with the Defender General’s office had expired five months earlier.

Brillon’s fifth lawyer was not assigned until nearly two months later, on January 15, 2003. Three months thereafter, Brillon’s fifth lawyer withdrew from the case due to a modification of his law firm’s contract with the Defender General.

Brillon then went four more months until he was assigned his sixth and final lawyer, appointed by the Defender General’s office after it received funds from the legislature to hire a "new special felony unit defender" for Brillon. The sixth lawyer filed a motion to dismiss for a violation of Brillon’s speedy trial rights. The trial court denied the motion, and the case went to trial nine months after Brillon’s final lawyer took over his defense.

Brillon leaves only for extreme exception, if even that, the possibility for defendants to successfully include such lawyer delays as those listed above towards the four-part speedy trial analysis under Barker v. Wingo, 407 U. S. 514 (1972). that looks at the length of the delay in going to trial, the reason for the delay, whether the defendant asserted a speedy trial right, and prejudice to the defendant. The Brillon eight-justice majority seeks to avert speedy trial dismissals occasioned by intentional delays of court-appointed counsel. However, on the flip side, prosecutors should not automatically be able to exclude delays in the work and appointment of court-appointed counsel — particularly the months-long time gaps experienced by Brillon in the dismissal of his fourth lawyer over four months after his contract ended with the Defender General, and the four additional months being assigned his final trial lawyer — from the speedy trial calculus. When the government decides to prosecute, it has a concomitant duty to assure the funds and means to provide competent government-paid counsel to indigent criminal defendants. Gideon v. Wainright, 372 U.S. 335 (1963).

Brillon’s sole dissenters are Justice Breyer, joined by Justice Stevens, who seem to grasp and handle the facts and law of the case in a more sensible and just manner. The dissent found the cert. petition in this case to have been improvidently granted, after asserting that the Vermont Supreme Court dismissed Brillon’s conviction without counting delays caused by court-appointed counsel. The dissent pointed out that even the state of Vermont conceded in its brief to the U.S. Supreme Court that the approximately seven-month delay in getting Brillon his final lawyer cannot be attributed to the defendant.

Justice Ginsburg wrote the majority Brillon opinion. No matter how often I agree and disagree with Justices Ginsburg and Breyer, I see them as having a high level of integrity, which leaves me wondering how the same set of facts put them on such opposite sides in Brillon, unless their take on the facts was similar to the four very different explanations for a death in Kurosawa’s essential Rashomon