• Supreme Court appeal grows
    By PATRICK McARDLE Herald Staff | November 28,2008
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    BENNINGTON Almost 40 states' attorneys general, more than 15 victims' rights groups, the National Governors' Association and the solicitor general of the United States have joined Vermont in its appeal of a Vermont Supreme Court decision from earlier this year that set a convicted felon free from prison because of speedy trial issues. Amicus curiae in the case of Vermont v. Michael Brillon were due on Monday.

    Bennington County State's Attorney Erica Marthage said it was important to have support from such a diverse group.

    "It shows how far-reaching the issues are in this case. We have, not just another prosecutorial group, but we also have interest from the executive branch in the governors' association. ... I also think it's interesting the number of victims groups that have also signed on to an amicus brief because it shows this isn't just policy or purely legal, it's a ruling that all these victims groups feel would have a real effect," she said.

    Marthage said the amicus briefs were important not just because they demonstrated the interest in the case but because they could raise other points of view not raised by her office.

    "It's one way to saturate the issue and get all the different issues in front of the U.S. Supreme Court," she said.

    An amicus curiae brief, or "friend of the court" brief, is a brief filed in a U.S. Supreme Court case by someone who is not a party to the case.

    The rules of the U.S. Supreme Court say an amicus brief "may be of considerable help to the court" if it brings forward relevant issues not raised by the parties.

    The brief written for the Vermont Network Against Domestic and Sexual Violence by Cheryl Hanna of the Vermont Law School was joined by victims' rights groups in Alaska, California, Hawaii, Illinois, Iowa, Kansas, Kentucky, New Jersey, New York, South Carolina and Virginia.

    Utah Attorney General Mark Shurtleff wrote a brief joined by 38 other states including Alabama, Maine, Massachusetts, Pennsylvania, Rhode Island, Tennessee, Texas, Washington and Wyoming.

    In July 2001, Brillon was arraigned in Bennington District Court because of an altercation he had with a woman with whom he had a relationship. Because Brillon had previous felony convictions, he was charged as a habitual offender.

    A jury convicted Brillon in June 2004 and he was sentenced to serve 12 to 20 years in prison.

    In March, the Vermont Supreme Court, in a 3-2 decision, overturned Brillon's conviction.

    " (W)e 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.

    Marthage's office appealed the decision to the Vermont Supreme Court but in April, they ruled that the issues raised by the appeal did not reach the level needed to review the case.

    In October, however, the U.S. Supreme Court agreed to hear the case. Arguments are scheduled for January.

    Bennington County Chief Deputy State's Attorney Christina Rainville, who is counsel of record on the case, said she spent the first week after the U.S. Supreme Court agreed to hear the case soliciting support.

    "It's a very, very important part of Supreme Court practice because the Supreme Court is deciding policy and how things are going to work from this point forward in our legal system. It's very important to the court to get the views of others beyond the parties before the court. In cases of national importance, it's extremely important to get other states, other attorneys general to sound off and give their views as well," she said.

    The brief filed by Shurtleff echoes arguments made in the brief written by Rainville, with the assistance of Michael Munson and Kate Burton of Marthage's office: First, the Vermont Supreme Court erred in attributing delays to the state that were caused by Brillon who changed court-appointed attorneys five times.

    "As the primary officers entrusted with criminal justice in the United States, the (states' attorneys who joined the brief) have a substantial interest in retaining their ability to prosecute cases without being held accountable for delays over which they had no control," Shurtleff wrote.

    Second, the decision creates unequal representation between defendants because those represented by a public defender would have an advantage over those who employed private counsel.

    "The unintended consequence of this approach would be indigent defendants who are rushed to trial in order to avoid a violation of their redefined speedy trial rights," Shurtleff wrote.

    Hanna's brief on behalf of victims' rights groups argues that upholding the Vermont Supreme Court decision would have an adverse impact on victims of sexual and domestic violence.

    "An increasing number of domestic and sexual violence cases are prosecuted as the criminal justice system continues to make progress in addressing them as serious crimes. The Vermont Supreme Court ruling undermines this progress by giving incentive to defendants and their counsel to strategically delay proceedings with the hope that the victim will decide not to proceed or that the case will be dismissed for lack of a speedy trial. It further encourages defendants to continue their abusive behaviors toward victims by manipulating the court system," Hanna wrote.

    Marthage and Rainville said there has been other support for their office including offers to host "moot court" arguments by the Vermont Law School in South Royalton and the National Association of Attorneys General in Washington, D.C.

    "Apparently, (the National Association of Attorneys General) set it up with people who spend most of their time arguing before the (U.S.) Supreme Court and they indicated that they know our issues well," Marthage said.

    Brillon is being represented by Vermont attorney William Nelson. Rainville said his briefs and amicus briefs were not yet due but she wouldn't be surprised to see a large outpouring of support for his side as well.

    "This case is considered to be one of national importance. It has the potential to be very broad reaching in its impact," Rainville said.

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