State of VT v. Brillon

This fascinating criminal law case deals with the question of whether a delay in pursuing a criminal trial, caused chiefly by his public defender attorneys, can rise to the level of a Sixth Amendment speedy trial violation under the theory that public defenders, too, are paid for by the state. In this case, a domestic batterer was freed from serving a sentence of between 12-20 years because the VT Supreme Court held that his public defenders had dithered and delayed his case for three years. In my recitation of the facts, there is some question in my mind whether most of the delay should be charged to the attorneys and not to the defendant himself, but the legal question has to do with attorney delay. A divided VT Supreme Court (3-2) held that such a delay must be charged against the state since the state sets up its criminal justice system and the inability to move a case forward means that the state, ultimately, is at fault. The two Justices in the minority, as might be expected, excoriated the majority for freeing a convicted felon when the prosecution had done nothing wrong. They argued that this kind of decision would actually encourage public defense attorneys in the future to try to delay cases to thereby secure release of their clients. The case presents an opportunity to deal with what I have found to be one of the knottiest issues in criminal justice law--the possibility of multiple trials (death penalty cases) and the consequent delays in the administration of justice.

Important Facts

In order for you to catch the flavor of this case, you should know the following facts and timeline. This is the legal equivalent of Henry VIII getting rid of six wives....

1. July 2001. Michael Brillon was charged with felony domestic assault for striking his girlfriend. Because he had three prior felony convictions, he was eligibile, under VT law, to be considered for a life sentence as a habitual offender.

2. Feb. 2002. Trial scheduled. On the day before jury draw, as they call it in VT, began, Brillon discharged his public defender lawyer saying that the lawyer was not ready to go to trial. Whom do you believe? Well, ultimately the court had to believe defendant, because it was his life on the line and it is better to err, in the first instance, than to press ahead heedless of consequences. Had the court pressed ahead at this point, it would have almost certainly been reversed on appeal.

3. Feb-May 2002. A "first level conflict counsel" was appointed. To understand the term--often public defender contracts with the state are written to provide funds for primary public defense counsel and "conflict counsel," in case the first attorney is taken off the case for some reason. But this second attorney, the "first level conflict counsel," realized he had a conflict and so withdrew. A third attorney was appointed.

4. May 2002. Brillon tried to fire his third lawyer, referred to as the "second level conflict counsel." The court held a hearing during which Brillon's counsel indicated he was prepared to go to trial. During a break in the proceedings, Brillon threatened his lawyer, and the lawyer asked to be released and was given permission to withdraw. A fourth lawyer was appointed.

4. In Nov. 2002 Brillon requested that his fourth lawyer be fired. We seem to have a personality conflict problem here, don't you think? I think that by this time most court systems would just say "Tough!" to the defendant--"You are going forward with trial." But why don't they do a sort of "interview" between the defendant and three or four indigent counsel from the outset, thus allowing the defendant to choose his counsel? Then he would have very few grounds for moving for a later dismissal--or, at least, the grounds would be less. Well, the trial court held a hearing on this one, too, and the lawyer confessed that he was getting out of criminal defense work. The court had to let him go.... Do you want to laugh or cry?

5. There were further delays in retaiing a fifth and sixth lawyer for Brillon. The court ordered the Office of Defender General to assign a new lawyer on Nov. 26, 2002 but this attorney (the fifth) wasn't actually assigned until Jan. 15, 2003. Long Christmas break, I guess. Then, three months later, that attorney sought to withdraw due to modifications in his contract with the Office of the Defender General. From April 2002-Aug. 2002 Brillon was without counsel.

6. Without an attorney, then, Brillon filed a pro se motion to dismiss the case due to the delay in bringing the case to trial. Finally, on Aug. 1, 2002 a sixth attorney was assigned to Brillon. On Feb. 23, 2004, this attorney filed a motion to dismiss for lack of a speedy trial. The trial court denied the motion on April 19, 2004 and found that much of the delay was caused by defendant's own actions--and that he was, in fact, not prejudiced by his own actions. His trial took place in June 2004 and he was ultimately sentenced to 12-20 years in prison. As mentioned above, the VT Supreme Court reversed, 3-2, on speedy trial grounds, and so the defendant went free.

Conclusion

I think the VT Supreme Court was just sending a signal to the state and its judges to make sure that things moved along more rapidly in its criminal justice system. I am sure that everyone from Bennington to Burlington has heard the message by now. Thus, when the Court reverses, as it almost certainly will, I don't see the reversal effecting a return to the "old system" of delays in VT. Yet, it is questionable whether the Court's almost certain reversal will have any effect in the other 49 states. There ought to be a way where the Court can actually set policy in all the states through a case like this.... By reversing, all the Court will probably say is that Mr. Brillon wasn't prejudiced or that the delay, while "regrettable," didn't rise to a Sixth Amendment violation. Maybe, however, the Court can craft an opinion that actually will have more "legs" than this...

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