The Supremes refine Barker v. Wingo

SCOTUS watchers are agog over today's voting rights opinion in Bartlett v. Strickland, No. 07-689. But for military justice wonks, the Supreme Court news of the day was Vermont v. Brillon, No. 08-88, in which the Supreme Court revisited Barker v. Wingo, 407 U. S. 514 (1972).

Justice Ginsburg's opinion for the Court overturned the Vermont Supreme Court's speedy trial ruling in favor of the defendant, Michael Brillon. Justice Breyer, joined by Justice Stevens, dissented, opining that the case should have been dismissed as improvidently granted.

Michael Brillon is what we in Appellate Defenseland call 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."

Brillon's various counsel took awhile to get ready for trial. Some mentioned heavy caseload as justification for the delay. Of course, Brillon also created delay by serially firing his counsel or causing them to withdraw. Nevertheless, the Vermont Supreme Court charged all the delay caused by the appointed counsel to the state and dismissed the charges on Sixth Amendment speedy trial grounds. Wrong, ruled the Supremes. "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." The time will be charged to the state only if a defendant is unrepresented due to the state's fault or there is an "institutional breakdown" in the public defender system.

The Supremes' opinion focused on the second Barker factor, the reason for the delay. Noting that delay attributable to the defense counsel is weighed against the defendant, the Supremes held that that rule applies regardless of whether the defense counsel is appointed or retained. The Court held that delay caused by appointed defense counsel's inability or unwillingness to move cases forward "may not be attributed to the State simply because they are assigned counsel."

The Court did observe, however, that 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 could be charged to the State." (quotation marks and internal citation omitted).

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.