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
proceedings."

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:

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

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.