Vermont v. Brillon, 556 U. S. ____ (2009)

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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 during 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 “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 notified the court that it had received “funding from the legislature” 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 Brillon’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 bringing Brillon to trial was “extreme” and weighed heavily in his favor. See 955 A. 2d, at 1116. In assessing the reasons for that delay, the Vermont Supreme Court separately considered the period of each counsel’s representation. 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 prejudicial, despite his insubstantial assertions of evidentiary prejudice, id., at 1125.

The dissent strongly disputed the majority’s characterization 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 “repeated 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,” “slippery,” 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 circumstances.” 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 defendant are weighed.” Id., at 529, 530. “[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.” 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) . Deliberate 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 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.” 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 accused’s advantage” because “witnesses may become unavailable 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 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.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 application of Barker that calls for this Court’s correction. The 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 purposes 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 continuances.8 Their “inability or unwillingness … to move the 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 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.

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 discretely. The factors identified in Barker “have no talismanic 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 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 defendant’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 resulting 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 assigned. “[A]ny inquiry into a speedy trial claim necessitates 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 further proceedings not inconsistent with this opinion.

It is so ordered.

556 U. S. ____ (2009)

SUPREME COURT OF THE UNITED STATES

VERMONT, PETITIONER v. MICHAEL BRILLON
on writ of certiorari to the supreme court ofvermont
[March 9, 2009]

Justice Breyer, with whom Justice Stevens 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 ambiguous. 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 proceedings 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).

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 contract 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 concession 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 representation 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. Brillon was left without counsel for a period of nearly six months. The State explained in conceding its responsibility 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 reasons.” 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 opinion 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 documents 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 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. Ante, at 11. I do not believe the Vermont Supreme Court exceeded that leeway here. And I would affirm its decision.
With respect, I dissent.
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