Steven R. Shapiro, Robin L. Dahlberg, Dan Barrett [ACLU], Anthony Franze, Robert Stolworthy and Stanton Jones [Arnold & Porter LLP]: "On January 13, 2009, the Supreme Court heard argument in Vermont v. Brillon, which addressed whether trial delays caused by underfunding, mismanagement, and breakdowns in the State's public defense system deprived an indigent defendant whose trial was delayed for nearly three years of his Sixth Amendment right to a speedy trial.

The Vermont Supreme Court had reversed the defendant's conviction and ordered the charges dismissed, finding that his trial was unconstitutionally delayed due largely to failures of the public defender system that left the defendant unrepresented for months at a time or merely nominally represented by a series of assigned counsel who did little to prepare his case. The Vermont Supreme Court held that the State, not the indigent defendant, was responsible for these types of delays under the U.S. Supreme Court's longstanding balancing test used to assess speedy trial violations.

On appeal to the U.S. Supreme Court, the State of Vermont (and its amici curiae, including 40 other states) originally took a bright line position. They argued that delays caused by public defenders can never be attributed to the State because defense counsel are not state actors. Pet. Br. at 26, 30; Utah et al. Amici Br. at 6-8. Vermont further asserted that the Vermont Supreme Court's decision was "a first in the history of American jurisprudence" and "turn[ed] thirty-six years of settled jurisprudence into chaos." Pet. Br. at 1.

By the time of the oral argument, however, the State appeared to have dramatically changed its position, essentially conceding the core legal issue in the case. Specifically, the defendant's brief correctly pointed out that like Vermont, other courts had repeatedly charged States with pretrial delays such as those at issue. Moreover, on behalf of amici curiae the ACLU, ACLU of Vermont, and the National Association of Criminal Defense Lawyers, we identified decades of jurisprudence in the closely related post-trial context attributing to the State delays caused by breakdowns in appellate defender systems. ACLU et al. Amici Br. at 2-3, 18-30. Beyond that, a group of retired state court justice amici pointed out that, in the lower court, the State's lawyers had conceded that allowing the defendant to go unrepresented for months could be weighed against the State. Justices Amici Br. at 3.

Thus, at oral argument Vermont retreated from its prior position that in a speedy trial analysis, courts could never attribute to the State delays caused by public defenders. For instance, Chief Justice Roberts asked Vermont's counsel whether the State would be responsible if "[t]he State has so many cases, and it's only willing to hire one lawyer. That lawyer can't possibly handle all the cases." Tr. at 7. Vermont's attorney responded affirmatively. Similarly, the Solicitor General, arguing in support of Vermont, acknowledged during the argument that courts can hold the State responsible for some delays caused by public defense systems, Tr. at 24-25, and recognized that Vermont had conceded as much in the lower court. Tr. at 28.

Having retreated from a bright line rule, the State devoted most of the oral argument to debating the facts — the purported causes of the defendant's trial delays. This prompted Justice Souter to note, "it seems to me that there isn't an issue of principle dividing the parties here, it's a series of issues of details." Tr. at 10. Justice Scalia later lamented, "you began your presentation with a statement that gave me so much hope. You said you were going to give us three reasons why we wouldn't have to get into the hairy facts of the case and could decide it on…issues of law." Tr. at 18.

In short, once the State was forced to abandon its overreaching and demonstrably incorrect position that the Vermont Supreme Court's approach was unprecedented, and then had to retreat from its original bright line rule, and finally was confronted with its waiver of the issue in the lower court, there remained little doubt that the Vermont Supreme Court's decision not only adhered to decades of lower court jurisprudence, but also presented a poor vehicle for examining the scope of the speedy trial right. The remaining thread by which the State's position hangs is a disputed factual assertion already rejected by the lower state court. That is not the type of determination the Supreme Court should overturn."