Editorial -- A Chance for the Supreme Court to Prevent a Perverse Incentive

Wednesday, January 14, 2009

FROM 2001 through 2004, Michael Brillon was represented by six different publicly funded attorneys. He fired two, claiming they did little-to-no work on his case; he threatened the life of a third -- forcing his withdrawal -- and had two others leave. As a result, Mr. Brillon, who had three prior felony convictions, spent three years in jail before, with the sixth lawyer representing him, he was convicted by a jury of second-degree aggravated domestic assault and sentenced to 12 to 20 years in prison. He was given credit for the time he served before his trial.

The Vermont Supreme Court threw out Mr. Brillon's conviction and barred prosecutors from retrying him after concluding that Mr. Brillon's right to a speedy trial had been violated -- even though the delays were the fault of Mr. Brillon or his lawyers. The court concluded, in part, that because the public defenders were paid with state money, the state must be held responsible. The Supreme Court, which heard arguments in the case yesterday, should overrule the decision.

Public defenders provide an indispensable service. They have been overworked and underfunded for far too long, and it is little wonder that some may not be able to competently manage all of their cases. This neglect risks travesties of all kinds, including the incarceration of innocent people. But letting defendants and their lawyers benefit from delays of their own making would create a perverse incentive for them to drag their feet. Some may question the likelihood of a defendant's choosing to remain behind bars without being convicted, but it is not far-fetched to imagine such a calculus from those who, as Mr. Brillon did, face long sentences.

Linking dismissal to time factors alone is a bad idea, but a defendant must have an opportunity for relief if a public defender's neglect is significant or serious delays are caused because of lawyers' being cycled through a case. Defendants who can prove that such delays and neglect substantially harmed their cases would be entitled to new trials. These kinds of motions are rarely granted, but they provide a safety valve in extraordinary circumstances.

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