Brillon lawyer criticizes state's case
By PATRICK McARDLE Herald Staff | December 18,2008
BENNINGTON — Attorney William Nelson's brief, filed Wednesday with the U.S. Supreme Court, strongly criticizes the state's argument in the case of a former Bennington County resident who was released from prison earlier this year because the Vermont Supreme Court found the state had taken too long to bring the case to trial.
In November, the Bennington County State's Attorney's office, which is representing Vermont for the prosecution, was joined by almost 40 states, a number of victims' rights groups and the Solicitor General, in opposing the Vermont Supreme Court's decision in the case of Michael Brillon.
While Brillon was arraigned in Bennington District Court in July 2001, he was not tried until June 2004. He was held in prison while awaiting trial.
After a jury trial, Brillon, who was charged as a habitual offender, was convicted of second-degree aggravated assault and sentenced to serve 12 to 20 years in prison.
In March, the Vermont Supreme Court set Brillon free arguing that the state had violated his right to a speedy trial as established by a 1972 U.S. Supreme Court decision that set four factors to consider in speedy trial cases.
The factors are the length of the delay, whether the delay created a prejudice that hurt the defendant, the defendant's requests for a speedy trial and the reason for the delay.
Nelson, a Middlebury attorney, said he sees the case very differently than the way it's been presented by the state.
"It's about the sixth amendment right to a speedy trial. … The only part of this test (used to determine violation of speedy trial rights) which the state's attorney says the Vermont Supreme Court got wrong is … the reason for the delay. They say it was Brillon and his lawyers who delayed the case. We say it was a breakdown in the Defender General's office, particularly the system for assigning 'contract counsel,'" Nelson said.
In the brief filed by the Bennington County State's Attorney's office, the state argues that Brillon caused the delay by firing attorneys assigned to attend him and threatening one of them.
Nelson said the state had used its brief to tell a "story."
"The story has a theme: that Brillon, despite his incarceration, despite what the record says and despite what courts below found and declined to find, secretly wanted to delay his case as long as possible and manipulated the proceedings to that end. The story has a surprise ending: that after delaying the case for almost three years, he managed to fool the Vermont Supreme Court into thinking the delays were the state's responsibilities not his," Nelson wrote.
In Nelson's brief, he details Brillon's experiences with seven attorneys who were unprepared to bring the case to trial or did little to communicate with Brillon or witnesses in the case. At least two attorneys left the case because their contract with the state to represent defendants had come to an end.
According to Nelson's brief, delays in the case were caused by backlogs in court schedules and inappropriate or ineffective counsel being assigned to Brillon, something which he believes is directly attributable to the state.
In an amicus curiae, or "friend of the court" brief, Cheryl Hanna, of the Vermont Law School, writing on behalf of the Vermont Network Against Domestic and Sexual Violence, said abusers often tried to delay trials as a way to intimidate their victims.
Nelson's brief dismissed that as a "devil theory" that is "no less fantastical for its repetition."
According to Nelson, the Brillon case is unusual because both sides are still discussing the facts of the case.
"Usually by the time a case reaches the U.S. Supreme Court, it's in this abstract realm and the issue is a legal one. Everyone is usually in agreement about the circumstances. In this case, I believe Vermont is spinning the facts and spinning the Vermont Supreme Court's opinion," he said.
Another unusual aspect is that while the Vermont Defender General's office argued the case before the Vermont Supreme Court, the Bennington State's Attorney's office is arguing the case to the U.S. Supreme Court. Nelson, who represented Brillon in the Vermont Supreme Court, said the state had previously conceded its responsibility in causing the delay.
The change in argument is "not kosher," Nelson said, because it didn't give the Vermont Supreme Court an opportunity to weigh in before the national court.
Amicus briefs which are filed with the U.S. Supreme Court by those who are not direct parties in the case, can be influential to the court. While the state has already had several amicus briefs that were filed on its behalf or joined by other groups, none have yet been filed for Brillon's defense.
Nelson said he was expecting amicus briefs, which are due in a week, but said he couldn't discuss them as of Wednesday.
While the Bennington County State's Attorney's office has argued that the Brillon decision could set a precedent, Nelson said he thinks it's largely specific to the facts in Brillon's case and doesn't need to have a large impact, no matter what the U.S. Supreme Court decides.
"There are a number of possible outcomes. Not the least likely is an order dismissing the state's … petition as "improvidently granted." That would leave everything as it was before the Supreme Court accepted the case, and would set no precedent at all," he said.
Contact Patrick McArdle at firstname.lastname@example.org.