OPINION OF THE COURT
VERMONT V. BRILLON
556 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
NO. 08-88
VERMONT, PETITIONER
v. MICHAEL BRILLON
on writ of certiorari to the supreme court of
vermont
[March 9, 2009]
Justice Ginsburg delivered the
opinion of the Court.
This case concerns the Sixth
Amendment guarantee that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy … trial.” Michael
Brillon, defendant below, respondent here, was arrested in July
2001 on felony domestic assault and habitual offender charges.
Nearly three years later, in June 2004, he was tried by jury, found
guilty as charged, and sentenced to 12 to 20 years in prison. The
Vermont Supreme Court vacated Brillon’s conviction and held that
the charges against him must be dismissed because he had been
denied his right to a speedy trial.
During the time between Brillon’s arrest and
his trial, at least six different attorneys were appointed to
represent him. Brillon “fired” the first, who served from July 2001
to February 2002. His third lawyer, who served from March 2002
until June 2002, was allowed to withdraw when he reported that
Brillon had threatened his life. The Vermont Supreme Court charged
against Brillon the delays associated with those periods, but
charged against the State periods in which assigned counsel failed
“to move the case forward.” 955 A. 2d 1108, 1121, 1122
(2008).
We hold that the Vermont Supreme Court erred
in ranking assigned counsel essentially as state actors in the
criminal justice system. Assigned counsel, just as retained
counsel, act on behalf of their clients, and delays sought by
counsel are ordinarily attributable to the defendants they
represent. For a total of some six months of the time that elapsed
between Brillon’s arrest and his trial, Brillon lacked an attorney.
The State may be charged with those months if the gaps resulted
from the trial court’s failure to appoint replacement counsel with
dispatch. Similarly, the State may bear responsibility if there is
“a breakdown in the public defender system.”
Id., at 1111.
But, as the Vermont Supreme Court acknowledged,
id., at
1126, the record does not establish any such institutional
breakdown.
I
On July 27, 2001, Michael Brillon
was arrested after striking his girlfriend. Three days later he was
arraigned in state court in Bennington County, Vermont and charged
with felony domestic assault. His alleged status as a habitual
offender exposed him to a potential life sentence. The court
ordered him held without bail.
Richard Ammons, from the county
public defender’s office, was assigned on the day of arraignment as
Brillon’s first counsel.[
Footnote
1] In October, Ammons filed a motion to recuse the trial judge.
It was denied the next month and trial was scheduled for February
2002. In mid-January, Ammons moved for a continuance, but the State
objected, and the trial court denied the motion.
On February 22, four days before the jury
draw, Ammons again moved for a continuance, citing his heavy
workload and the need for further investigation. Ammons
acknowledged that any delay would not count (presumably against the
State) for speedy-trial purposes. The State opposed the
motion,[
Footnote 2] and at the
conclusion of a hearing, the trial court denied it. Brillon,
participating in the proceedings through interactive television,
then announced: “You’re fired, Rick.” App. 187. Three days later,
the trial court—over the State’s objection—granted Ammons’ motion
to withdraw as counsel, citing Brillon’s termination of Ammons and
Ammons’ statement that he could no longer zealously represent
Brillon.[
Footnote 3] The trial
court warned Brillon that further delay would occur while a new
attorney became familiar with the case. The same day, the trial
court appointed a second attorney, but he immediately withdrew
based on a conflict.
On March 1, 2002, Gerard Altieri was assigned
as Brillon’s third counsel. On May 20, Brillon filed a motion to
dismiss Altieri for, among other reasons, failure to file motions,
“[v]irtually no communication whatsoever,” and his lack of
diligence “because of heavy case load.”
Id., ¶¶2, 5, at
113–114. At a June 11 hearing, Altieri denied several of Brillon’s
allegations, noted his disagreement with Brillon’s trial
strategy,[
Footnote 4] and
insisted he had plenty of time to prepare. The State opposed
Brillon’s motion as well. Near the end of the hearing, however,
Altieri moved to withdraw on the ground that Brillon had threatened
his life during a break in the proceedings. The trial court granted
Brillon’s motion to dismiss Altieri, but warned Brillon that “this
is somewhat of a dubious victory in your case because it simply
prolongs the time that you will remain in jail until we can bring
this matter to trial.”
Id., at 226.
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),[
Footnote 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).[
Footnote 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.[
Footnote 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.[
Footnote 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.[
Footnote 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.
Footnote 1
Vermont’s Defender General has “the primary
responsibility for providing needy persons with legal services.”
Vt. Stat. Ann., Tit. 13, §5253(a) (1998). These services may be
provided “personally, through public defenders,” or through
contract attorneys.
Ibid.
Footnote 2
The State expressed its concern that the
continuance request was “just part and parcel of an effort by the
defense to have the Court not hear this matter.” App. 180. Under
Vermont procedures, the judge presiding over the trial was
scheduled to “rotate” out of the county where Brillon’s case was
pending in March 2002. See
id., ¶6, at 109. Thus, a
continuance past March would have caused a different judge to
preside over Brillon’s trial, despite the denial of his motion to
recuse the initial judge. Ammons requested a continuance until
April.
Footnote 3
Ammons also cited as cause to withdraw,
“certain irreconcilable differences in preferred approach between
Mr. Brillon and counsel as to trial strategy, as well as other
legitimate legal decisions.”
Id., ¶2, at 104.
Footnote 4
Specifically, Altieri appeared reluctant to
follow Brillon’s tactic that he “bring in a lot of people” at
trial, “some of them young kids and relatives … in an attempt by
Mr. Brillon—this is his theory—I don’t want to use the words trash,
[to] impeach [the victim].”
Id., at 216–217.
Footnote 5
Vermont’s Constitution contains a
speedy-trial clause which reads: “[I]n all prosecutions for
criminal offenses, a person hath a right to … a speedy public trial
by an impartial jury … .” Vt. Const., Ch. I, Art. 10. Notably,
the Vermont Supreme Court made no ruling under the State’s own
prescription, but instead relied solely on the Federal
Constitution. Because it did so, our review authority was properly
invoked and exercised. See
Oregon v.
Hass,
420 U. S. 714,
719–720 (1975); Ginsburg, Book Review, 92 Harv. L. Rev. 340,
343–344 (1978). But see
post, at 1–4.
Footnote 6
Several States’ speedy-trial statutes
expressly exclude from computation of the time limit continuances
and delays caused by the defendant or defense counsel. See,
e.g., Cal. Penal Code Ann. §1381 (West 2000); Ill. Comp.
Stat., ch. 725, §5/103–5(f) (2006); N. Y. Crim. Proc. Law Ann.
§30.30(4) (West Supp. 2009); Alaska Rule Crim. Proc. 45(d) (1993);
Ark. Rule Crim. Proc. 28.3 (2006); Ind. Rule Crim.
Proc. 4(A) (2009). See also Brief for National Governors
Association et al. as
Amici Curiae 17–18, and
n. 12.
Footnote 7
A public defender may act for the State,
however, “when making hiring and firing decisions on behalf of the
State,” and “while performing certain administrative and possibly
investigative functions.”
Polk County v.
Dodson,
454 U. S. 312, 325 (1981).
Footnote 8
The State conceded before the Vermont Supreme
Court that the period of Sleigh’s representation—along with a
six-month period of no representation—was properly attributed to
the State. 955 A. 2d 1108, 1120–1121 (2008). The State sought
to avoid its concession at oral argument before this Court, but in
the alternative, noted that the period of Sleigh’s representation
“is really inconsequential.” Tr. of Oral Arg. 5–6. We agree that in
light of the three-year delay caused mostly by Brillon, the
attribution of Sleigh’s three-month representation does not tip the
balance for either side.
Footnote 9
Brillon lacked counsel for some six months.
In light of his own role in the initial periods of delay, however,
this six-month period, even if attributed to the State, does not
establish a speedy-trial violation.
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