Vermont v. Brillon

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

VERMONT v. BRILLON

CERTIORARI TO THE SUPREME COURT OF VERMONT

No. 08–88. Argued January 13, 2009—Decided March 9, 2009

In July 2001, respondent Brillon was arrested on felony domestic as

sault and habitual offender charges. Nearly three years later, in

June 2004, he was tried by jury, found guilty as charged, and sen

tenced to 12 to 20 years in prison. During the time between his ar

rest and his trial, at least six different attorneys were appointed to

represent him. Brillon “fired” his first attorney, 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 re

ported that Brillon had threatened his life. His fourth lawyer served

from June 2002 until November 2002, when the trial court released

him from the case. His fifth lawyer, assigned two months later,

withdrew in April 2003. Four months thereafter, his sixth lawyer

was assigned, and she took the case to trial in June 2004.

The trial court denied Brillon’s motion to dismiss for want of a

speedy trial. The Vermont Supreme Court, however, reversed, hold

ing that Brillon’s conviction must be vacated, and the charges against

him dismissed, because the State did not accord him the speedy trial

required by the Sixth Amendment. Citing the balancing test this

Court stated in Barker v. Wingo, 407 U. S. 514, the Vermont Su

preme Court concluded that all four 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,” id., at 530—weighed

against the State. Weighing heavily in Brillon’s favor, the Vermont

court said, the three-year delay in bringing him to trial was “ex

treme.” In assessing the reasons for that delay, the court separately

considered the period of each counsel’s representation. It acknowl

edged that the first year, when Brillon was represented by his first

and third lawyers, should not count against the State. But the court

counted much of the remaining two years against the State. Delays

2 VERMONT v. BRILLON

Syllabus

in that period, the court determined, were caused, for the most part,

by the failure or unwillingness of several of the assigned counsel,

over an inordinate period of time, to move the case forward. As for

the third and fourth Barker v. Wingo factors, the court found that

Brillon repeatedly and adamantly demanded a trial and that his

lengthy pretrial incarceration was prejudicial.

Held: 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 defen

dants they represent. Pp. 6–11.

(a) Primarily at issue here is the reason for the delay in Brillon’s

trial. In applying Barker, the Court has asked “whether the govern

ment or the criminal defendant is more to blame for th[e] delay.”

Doggett v. United States, 505 U. S. 647, 651. Delay “to hamper the

defense” weighs heavily against the prosecution, Barker, 407 U. S., at

531, while delay caused by the defense weighs against the defendant,

id., at 529. 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 charged against the defendant. Cole

man v. Thompson, 501 U. S. 722, 753. 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 pri

vately retained, appointed, or serving in a legal aid or defender pro

gram.’ ” Polk County v. Dodson, 454 U. S. 312, 318. Unlike a prose

cutor or the court, assigned counsel ordinarily is not considered a

state actor. Pp. 6–8.

(b) Although the balance arrived at in close cases ordinarily would

not prompt this Court’s review, the Vermont Supreme Court made a

fundamental error in its application of Barker that calls for this

Court’s correction. The court erred in attributing to the State delays

caused by the failure of several assigned counsel to move Brillon’s

case forward and in failing adequately to take into account the role of

Brillon’s disruptive behavior in the overall balance. Pp. 8–11.

(1) An assigned counsel’s failure to move the case forward does

not warrant attribution of delay to the State. Most of the delay the

Vermont court attributed to the State must therefore be attributed to

Brillon as delays caused by his counsel, each of whom requested time

extensions. Their inability or unwillingness to move the case forward

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

Cite as: 556 U. S. ____ (2009) 3

Syllabus

grounds. Trial courts might well respond by viewing continuance re

quests 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 re

tained counsel’s requests for time extensions. There is no justifica

tion for treating defendants’ speedy-trial claims differently based on

whether their counsel is privately retained or publicly assigned.

Pp. 9–10.

(2) The Vermont Supreme Court further erred by treating the

period of each counsel’s representation discretely. The court failed

appropriately to take into account Brillon’s role during the first year

of delay. Brillon sought to dismiss his first attorney on the eve of

trial. His strident, aggressive behavior with regard to his third at

torney further impeded prompt trial and likely made it more difficult

for the Defender General’s office to find replacement counsel. Absent

Brillon’s efforts to force the withdrawal of his first and third attor

neys, no speedy-trial issue would have arisen. Pp. 10–11.

(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 could be charged to the

State. Cf. Polk County, 454 U. S., at 324–325. But the Vermont Su

preme Court made no determination, and nothing in the record sug

gests, that institutional problems caused any part of the delay in

Brillon’s case. P. 11.

955 A. 2d 1108, reversed and remanded.

GINSBURG, J,. delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, KENNEDY, SOUTER, THOMAS, and ALITO, JJ., joined.

BREYER, J., filed a dissenting opinion, in which STEVENS, J., joined.

Cite as: 556 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

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

2 VERMONT v. BRILLON

Opinion of the Court

(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 break­

down.

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.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, Am­

——————

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.

Cite as: 556 U. S. ____ (2009) 3

Opinion of the Court

mons 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,2 and at the conclusion of a hearing,

the trial court denied it. Brillon, participating in the

proceedings through interactive television, then an­

nounced: “You’re fired, Rick.” App. 187. Three days later,

the trial court—over the State’s objection—granted Am­

mons’ motion to withdraw as counsel, citing Brillon’s

termination of Ammons and Ammons’ statement that he

could no longer zealously represent Brillon.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 Bril­

lon’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 sev­

eral of Brillon’s allegations, noted his disagreement with

Brillon’s trial strategy,4 and insisted he had plenty of time

——————

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.

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.

4 Specifically, Altieri appeared reluctant to follow Brillon’s tactic that

4 VERMONT v. BRILLON

Opinion of the Court

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 dur­

ing 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

——————

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.

Cite as: 556 U. S. ____ (2009) 5

Opinion of the Court

“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 noti­

fied the court that it had received “funding from the legis­

lature” 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 Bril­

lon’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 bring­

ing Brillon to trial was “extreme” and weighed heavily in

his favor. See 955 A. 2d, at 1116. In assessing the rea­

sons for that delay, the Vermont Supreme Court sepa­

rately considered the period of each counsel’s representa­

tion. It acknowledged that the first year, when Brillon

was represented by Ammons and Altieri, should not count

6 VERMONT v. BRILLON

Opinion of the Court

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 prejudi­

cial, despite his insubstantial assertions of evidentiary

prejudice, id., at 1125.

The dissent strongly disputed the majority’s characteri­

zation 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 “re­

peated 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,” “slip­

pery,” 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 circum­

——————

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.

Cite as: 556 U. S. ____ (2009) 7

Opinion of the Court

stances.” 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 defen­

dant are weighed.” Id., at 529, 530. “[S]ome of the fac­

tors” 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). Delib­

erate 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 over­

crowded 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 ac­

cused’s advantage” because “witnesses may become un­

available or their memories may fade” over time. Barker,

8 VERMONT v. BRILLON

Opinion of the Court

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 omit­

ted). “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, as­

signed 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 applica­

tion of Barker that calls for this Court’s correction. The

——————

6 Several States’ speedy-trial statutes expressly exclude from compu­

tation of the time limit continuances and delays caused by the defen­

dant 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.

7 A public defender may act for the State, however, “when making

hiring and firing decisions on behalf of the State,” and “while perform­

ing certain administrative and possibly investigative functions.” Polk

County v. Dodson, 454 U. S. 312, 325 (1981).

Cite as: 556 U. S. ____ (2009) 9

Opinion of the Court

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 pur­

poses 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 continu­

ances.8 Their “inability or unwillingness . . . to move the

——————

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,

10 VERMONT v. BRILLON

Opinion of the Court

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 coun­

sel to delay proceedings by seeking unreasonable continu­

ances, hoping thereby to obtain a dismissal of the indict­

ment on speedy-trial grounds. Trial courts might well

respond by viewing continuance requests made by ap­

pointed 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 dis­

cretely. The factors identified in Barker “have no talis­

manic 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

——————

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.

Cite as: 556 U. S. ____ (2009) 11

Opinion of the Court

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 defen­

dant’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 result­

ing 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 as­

signed. “[A]ny inquiry into a speedy trial claim necessi­

tates 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

——————

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.

12 VERMONT v. BRILLON

Opinion of the Court

further proceedings not inconsistent with this opinion.

It is so ordered.

Cite as: 556 U. S. ____ (2009) 1

BREYER, J., dissenting

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 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 ambigu­

ous. 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 pro­

ceedings 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).

2 VERMONT v. BRILLON

BREYER, J., dissenting

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 con­

tract 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 conces­

sion 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 represen­

tation 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. Bril­

lon was left without counsel for a period of nearly six

months. The State explained in conceding its responsibil­

Cite as: 556 U. S. ____ (2009) 3

BREYER, J., dissenting

ity 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 rea­

sons.” 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 opin­

ion 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 docu­

ments 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 de­

cides 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

4 VERMONT v. BRILLON

BREYER, J., dissenting

leeway here. And I would affirm its decision.

With respect, I dissent.