Brillon – new Supreme Court case.

The Supreme Court has decided  Vermont v. Brillon.

The case is a Sixth Amendment speedy trial case.

The significant delays in the accused getting to trial were caused by Brillon's public defender counsel or himself.  The bottom line issue is who is accountable for those delays — the government or the defense.

Brillon was, to quote my good friend over at CAAFLog:

"[A] client from
hell. Brillon was represented by six — count 'em, six — appointed
defense counsel during the almost three years between his arrest and
conviction. The first five apparently were fired or terminated the
attorney-client relationship for various reasons. One withdrew "on the
ground that Brillon had threatened his life during a break in the

At various times the case was delayed because the public defender needed more time to prepare or because case conflicts – a usual weeks work in one day in a public defender shop,  or because of the logistics problems with getting new counsel.  For example Brillon went four months without counsel because the state contract with attorney's to provide defender services was unfunded by the legislature.  Kent Scheidegger, at Crime & Consequences has the right point on this, while giving kudos to Justice Ginsburg.  Kent Scheidegger, A Practical Supreme Court, 9 March 2009.

Bottom line, the Supreme Court found that delays attributable to the publicly funded defense counsel are attributable to the defense.  Such delays are not attributable to the state just because the state was employing the defender.  Frankly, I found it odd that such an issue would come up like this.  I've never thought the government was responsible for pretrial delays of defense counsel just because the government provided the defense counsel so they were government agents/actors.  I've always thought there had to be a connection.  I will say that I continue to believe that whenever the government does something to cause defense delay it ought to be government delay.  While I think it unethical to seek a delay and then use the delay as a weapon, I'm mindful of the trial counsel who give you discovery a day before trial and then obejct to you having a delay.  That delay ought to be government delay.  It usually isn't.  That's the game.

I heartily agree with CAAFLog, and am surprised this has not arisen earlier, that the two relevant to military justice points to come from Brillon are:

This opinion will likely lead CAAF to revisit its post-trial delay case law. Applying the second Barker prong in Moreno,
CAAF held, "The Government bears responsibility for unreasonable delay
during appeal occasioned by the workload of appellate defense counsel."
United States v. Moreno, 63 M.J. 129, 138 (C.A.A.F. 2006). Brillon casts doubt over that conclusion. Under Brillon,
it appears that workload-created delay is attributable to the
government only if there was an institutional breakdown in the
appellate defense system for the relevant service. And once that
becomes the central question in appellate delay cases, things could get
quite ugly. Batten down the hatches and standby for heavy seas.

I'm surprised that if the appellate shops are so overwhelmed there hasn't been more litigation or movement on the issue.

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 omitted). "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, assigned counsel ordinarily is not considered a state actor.
CAAFLog argues,
language suggests that the military can't put limitations on a military
defense counsel's representation that it couldn't impose on a civilian
providing representation. So, for example, a military defense counsel
who provides information to the media isn't releasing information on
behalf of the service any more than a civilian defense counsel who
releases information is. What other restrictions limit military defense
counsel that may be challenged using this language?

I am reminded of the Lousiana public defender litigation from some years ago.  State fails to meet 9 of 10 national indigent defense standards, NACDL, 9 March 2004.

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