South Carolina Criminal Defense Blog

The United States Supreme Court today released Vermont v. Brillon, holding that the defendant was not denied his right to a speedy trial where he went through six appointed attorneys over a period of three years before his domestic violence and habitual offender charges were brought to trial.

Although I disagree with some of the phrasing used by the Court, I agree that there was no violation of this defendant's right to a speedy trial. When the Court accepted cert in this case, some commentators painted it as an example of a breakdown in the indigent defense system which was no fault of the defendant's, which should therefore be held against the state in determining whether his right to a speedy trial was violated. If that was the case I would agree, however this may not have been the right test case for that issue. The facts as recited by SCOTUS indicate that Billon was the cause of the delay, that he was a difficult client at best, that he threatened one of his attorneys and that he fired others.

For purposes of constitutional analysis, Barker v. Wingo is the seminal case regarding when the right to speedy trial has been violated. The test is fluid, and there is no bright line rule to go by. It will depend on the complexity of the case, and the courts must weigh several factors which include the length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and prejudice to the defendant. The federal courts and some states have their own sets of rules regarding what a speedy trial is in various types of cases, but South Carolina does not. I have had one case that was dismissed on speedy trial grounds, but it is a rare occurence.

Where a defendant causes the delay by purposefully switching attorneys or by his conduct which necessarily results in new counsel being necessary, the defendant can't claim that he has been denied his right to a speedy trial. Where counsel for the defendant requests a continuance in the case, the general rule is that the right to a speedy trial has been waived. If the defendant does not ask for a speedy trial, the right to a speedy trial may be waived. Only when the state is the cause of the delay - whether it is purposeful or whether it is due to overcrowded dockets or whether it is due to the state's inability to provide adequate counsel in a timely manner - should a dismissal for violation of the right to speedy trial be granted. Like I said, this was not the ideal test case for this issue.

One thing that bothered me in the Court's opinion was an analysis of whether assigned counsel's "failure to move the case forward" should be attributed to the state. The question is framed wrong - counsel, assigned or retained, has no obligation to "move a case forward;" it is the government's responsibility to move the case. This is more true in South Carolina than anywhere, as the solicitor's office, not the clerk or the judge, is in control of the docket in South Carolina. A defendant, other than making the request for a speedy trial, has no responsibility and in fact does not have the power to move a case forward. If there are no acceptable negotiations, it is up to the solicitor's office to put the case on the docket and try it.