• Speedy trial case spurs judicial soul-searching
    By PATRICK McARDLE Staff Writer | June 22,2008
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    Vermont's judicial system is coming to terms with a recent court decision that could make it harder for defendants to get a fair trial and easier for convicted criminals to be released.

    On its face, the Vermont Supreme Court decision in the case of Vermont vs. Michael Brillon can be reduced to a simple conclusion: The state failed to protect Brillon's constitutionally guaranteed right to a speedy trial; consequently, his conviction was overturned.

    The broader repercussions are not as straightforward. The Brillon decision could have widespread and potentially harmful consequences for people facing trial in Vermont.

    Here are a few of the problems experts foresee:

  • Public defenders are afraid that judges will be slow to grant permission for an appointed attorney to withdraw from a case. Defendants, including those represented by the public defender's office, have the right to ask for new representation if they disagree with or have difficulty communicating with their assigned attorneys.

  • Prosecutors worry that if they press for a trial start that a defendant could claim that he or she did not have effective counsel.

  • Prosecutors are also concerned that if a trial is delayed, a convicted felon (as in the Brillon case) could be released over speedy trial issues.

    The Brillon case began in July 2001 when Brillon was arraigned in Bennington District Court after a woman told police that he punched her in the face during an argument at her home. When they spoke to the woman, police said, both her eyes were swollen and there was blood coming from the left side of her mouth. Brillon, who was under conditions of release at the time of the incident, was not supposed to harass the woman who reported the assault.

    Because Brillon had previous felony convictions for sexual assault on a minor, aiding in the concealment of stolen property and obstructing justice, he was charged as a habitual offender with a felony count of second degree domestic assault in violation of a criminal court order.

    As he waited for trial, Brillon changed attorneys five times and allegedly threatened violence against one of his appointed attorneys. His trial, during which he was appointed his sixth attorney. took place in June 2004, almost three years after his arrest. He was convicted and sentenced to serve 12 to 20 years.

    The Vermont Supreme Court, in reaching its decision, relied on a U.S. Supreme Court case from 1972. In Barker vs. Wingo, the court established a four-part test to establish whether the right to a speedy trial had been violated. The assessment is based on the length of the pre-trial period, the cause of the delay, the aggressiveness of the defendant in requesting a speedy trial and the damage to the defendant's case as a result.

    In a lengthy decision, the Vermont Supreme Court decided all four factors applied in the Brillon case.

    For example, the justice pointed out that Brillon's fourth attorney, who was assigned in June 2002, said two months later that he needed more time to prepare, but backed out of the case in November 2002 because his contract with the defender general had expired. Brillon's next attorney wasn't assigned until January 2003 and he left the case in April 2003, also because of changes in the contract with the defender general's office. The sixth attorney was assigned in August 2003.

    The Vermont Supreme Court said the gaps in Brillon's representation demonstrated the state had kept him waiting for several periods in the time between his arraignment and trial.

    The Supreme Court said the records show Brillon had "repeated and adamantly demanded to be tried" and "grudgingly consented to continuances to allow his attorneys to prepare his case."

    In their decision, the justices said Brillon's claims that the delay had hurt his case "did not appear to be substantial." However, they also said the defendant did not need to prove the delay had hurt his case.

    "We caution, however, that even moderately speculative claims of evidentiary prejudice must be given careful consideration because of the difficulty in demonstrating time's erosion of potentially exculpatory testimony. … The principal reason that prejudice exists in this case is because of the inordinate delay in prosecuting him while he was incarcerated," the decision reads.

    The Vermont Supreme Court majority rejected the dissent opinion of two members who said Brillon was responsible for much of the delay and ordered Brillon's release.

    "Accordingly, we are reluctant, but compelled, to exercise the extraordinary remedy of dismissing the charges in a case involving a habitual offender who was convicted of what we consider to be a very serious criminal offense – aggravated domestic assault," the justices wrote.

    Brillon was released from prison, despite the strong dissent of two of the five justices and indications that the Bennington County State's Attorney Erica Marthage would appeal the case.

    Marthage said Brillon, who lives in New York near the Vermont border, is not under Vermont Department of Corrections supervision. The victim in the case remains fearful of Brillon and willing to assist in re-prosecuting the case, according to Marthage.

    "Obviously, this sent a shiver through all of the Vermont prosecutors when this decision came down," said Jane Woodruff, executive director of the Vermont Department of State's Attorneys and Sheriffs.

    Woodruff recommends that prosecutors keep a close eye on the amount of time incarcerated defendants await trial.

    But there is no set time limit for cases awaiting trial. A case could have taken longer than Brillon's and had there been a justifiable reason, it wouldn't necessarily trigger the "speedy trial" exception.

    Vermont Defender General Matthew Valerio couldn't think of another Vermont case in which the Supreme Court had overturned a conviction because of speedy trial issues.

    "To me, the Brillon case stands on an island. It's not a change to the structure of the system," he said.

    Valerio said in 2001 the system had a backlog of cases. When Brillon was arrested, "there was a hiring freeze and it was a very tough budget time. The public defenders didn't have the staff to handle all the cases they were faced with. But our system has gone forward and remains in tact. Compared to then, we have twice as many contracted public defenders and 20 percent more staff. Overall, we're in a better position to handle anything that comes our way."

    Valerio doesn't think the Brillon case will have much of an impact on how the state's public defenders handle cases. His biggest concern is whether trial judges will overreact and deny lawyers' requests for more trial preparation time.

    Other legal experts say the Brillon decision creates a Catch 22 for state attorneys: They can accept delays, even when they're requested by the defendant, and risk having a conviction overturned because of speedy trial issues; or resist the delays and risk having the conviction overturned because of denial of effective counsel.

    In essence, attorneys are now required to work as thoroughly as possibly under much tighter deadlines, even when some defendants may actively delay their trials so they can later claim they were denied the right to a speedy trial.

    Complicating the situation further, it's possible the Brillon decision could be thrown out. The office of Bennington County State's Attorney Erica Marthage appealed the decision to the Vermont Supreme Court. The appeal was denied because the justices found it did not meet the criteria for hearing new arguments on a case. Marthage is now considering an appeal to the U.S. Supreme Court.

    Vermont Law School Professor Michael Mello said that while a U.S. Supreme Court hearing would be a long shot, the Brillon case has a better-than-usual chance of catching the court's attention. Speedy trials are guaranteed by both the U.S. and Vermont constitutions.

    Mello said speedy trial claims tend to be narrowly focused on how the facts and exact circumstances in a specific case are interpreted using the four-part test established by the U.S. Supreme Court. Consequently, the Brillon case may not provide get-out-of-jail-free cards for convicted criminals.

    SUBHEAD: Is the public defender system broken?

    Mello believes Brillon could spark bigger changes ahead.

    "The most significant impact might be the court's recognition that there might be a structural defect in our legal system," Mello said.

    Mello said that people in the legal system in Vermont have long held the opinion that it is under funded especially when it comes to providing public defenders to low-income citizens. The Supreme Court decision points to a situation that has become intolerable, according to Mello.

    "If the justices conclude the system doesn't work, it seems to me they don't have much choice, in good conscience, to do something. Their choices are limited," he said.

    Mello said the justices appear to be trying to get the attention of the Legislature by demonstrating how the system is failing to protect the rights of defendants. Such shortcomings can lead to the release of prisoners, even those, like Brillon, convicted of violent crimes.

    Mello hopes the Brillon decision will force Vermont's Legislature to consider whether it providing enough funding for the criminal justice system.

    Members of the Legislature and the Douglas administration have complained that it's inappropriate for the Vermont Supreme Court to use this case to send a message about how lawmakers should allocate resources.

    "Releasing someone convicted of domestic assault and threatening to release murderers to influence the budget process is grossly irresponsible," Secretary of Administration Michael Smith told this newspaper in February.

    One section of the court's opinion reads, "If it is the result of inadequate resources given to the defender general's office, it would behoove the Legislature to address the problem before we are confronted anew with the dilemma of dismissing charges and prematurely releasing potentially dangerous individuals into the community."

    Mello said he believed the other two branches of Vermont government got caught up in the case against Brillon as an individual and took the court's decision as a "political shot across the bow rather than as a wake-up call."

    "Rather than taking it as an invitation to at least study the question, (state Sen. Richard) Sears got petulant, (Gov. James) Douglas got petulant, and they got personal with the court. … Now that little more time has passed, I hope they'll be willing to take a hard look at whether the Vermont Supreme Court might have had a point," Mello said.

    Sears, however, doesn't appear ready to reconsider the funding issue and said he was especially concerned about a section of the decision that said, "The circumstances resulting in (this) dismissal … could conceivably arise again, perhaps in a case involving a murder or another serious felony."

    "We have bent over backwards to improve funding for the justice system," he said in late May. "What the court hasn't looked into is what we've already done to improve funding. But if we put more money into the defender general's office, we have to put more money into the courts, the police, everybody. … What we ought to do is look at taking money from the courts and giving it to the defender general's office."

    According to the Legislature's joint Fiscal Office, the criminal justice system budget for the fiscal year that begins July 1 is $71 million. That figure includes the attorney general's office, state's attorneys and public defenders, state sheriffs and the court system.

    Of that budget, about $11 million, or 15.8 percent, is for the public defender's office. In fiscal year 2004, the public defender's budget was about $8.7 million, also 15.8 percent of the overall budget for the criminal justice system.

    Robert Appel, Vermont's Defender General from 1993 to 2001, said it will be difficult to find more money for public defenders in a tight state budget year.

    "It's certainly challenging to generate public support to raise funding for poor people accused of crimes," he said.

    Because many of the people who face prosecution are disenfranchised citizens living on the fringes of society, they rarely have a voice in Montpelier, Appel said, and many of them may be assigned inexperienced lawyers, which prevents them from getting the zealous defense required by the Constitution.

    Appel suggested that one way to ease the burden on the criminal justice system is to move away from the rhetoric of "getting tough on crime" and take a hard look at what Vermonters want to see handled by the criminal justice system.

    "The problem is that we're asking too much of the system. There are more mandatory penalties, criminal filings are up. Every case comes with a certain cost and we have to ask, 'Are the taxpayers willing to pay it?' … We need to rethink what we're asking of the system," he said.

    Woodruff said she thought it was fair of the justices to point out that the criminal justice system was under funded.

    "The decision focuses only on the public defenders and the court system. I would like to see the Legislature add to prosecutorial resources but I know we're facing incredibly tight times," she said.

    Preventing delays

    Former Windham County State's Attorney Dan Davis, who held the office for 21 years, said that if the Brillon decision stands prosecutors will need more authority.

    "If you're going to hold the state responsible for the delay and toss a conviction, release a dangerous person back into the community, you gotta let the state decide what gets tried and in what order. (The prosecutors) are the ones charged with defending the public," he said.

    Davis said a number of judges, including the now-retired Judge Paul Hudson, have shown a commitment to moving cases quickly toward trial.

    A delay, however, can come from the one source the Vermont Supreme Court largely dismissed in its decision: the defendant.

    "A lot of defendants are crafty and they know how to manipulate the system," Davis said.

    In a motion asking the Vermont Supreme Court to reconsider the Brillon case, Marthage said the delays had been caused by the defendant and his attorneys "who diligently filed numerous pre-trial motions on (Brillon's) behalf that, by necessity, delayed the trial."

    "(T)his case represents an extraordinary situation where the vast majority of pretrial delay was caused by (Brillon) firing his first court-appointed counsel, threatening the third and causing the withdrawal of still another by making unreasonable demands," Marthage wrote.

    According to Davis, some defendants seek a delay because potential witnesses may leave the area or their memory may fade. Now, there may be more reasons to seek ways to put the trial off.

    Hudson, who was a judge for 23 years until retiring in January 2003, said scheduling trials efficiently can be very complex.

    Hudson said judges rely on attorneys to provide information about when cases are ready for trial. Sometimes prosecution and defense attorneys come to handshake agreements to delay a trial to buy time for more preparation.

    "We try to move them along but we can't move them too fast so a defendant can't get fair representation because of the onerous nature of the trial date," he said.

    When there are significant delays, Hudson suggested that court officers should get a defendant to sign a waiver stating that he or she understands the reason for the delay and agrees to wait.

    Ultimately, Mello said Vermonters should understand that this decision anyone who is charged with a crime. He said New Hampshire has made a concerted effort to find qualified public defenders that are as good as or better than private defense attorneys.

    "The New Hampshire Legislature and governor understand that the government isn't always your friend. When the government is trying to put you in a cage or hook you up to a lethal injection needle, they don't always have your best interests at heart. The people need their own champion," he said.

    Contact Patrick McArdle at patrick.mcardle@rutlandherald.com.
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