VERMONT v. BRILLON

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81 OCTOBER TERM, 2008
Syllabus
VERMONT v. BRILLON
certiorari to the supreme court of vermont
No. 08–88. Argued January 13, 2009—Decided March 9, 2009
In July 2001, respondent Brillon was arrested on felony domestic assault
and habitual offender charges. Nearly three years later, in June 2004,
he was tried by jury, found guilty as charged, and sentenced to 12 to 20
years in prison. During the time between his arrest and his trial, at
least six different attorneys were appointed to represent him. Brillon
“fired” his first attorney, who served from July 2001 to February 2002.
His third lawyer, who served from March 2002 until June 2002, was
allowed to withdraw when he reported that Brillon had threatened his
life. His fourth lawyer served from June 2002 until November 2002,
when the trial court released him from the case. His fifth lawyer, as
signed two months later, withdrew in April 2003. Four months thereaf
ter, his sixth lawyer was assigned, and she took the case to trial in
June 2004.
The trial court denied Brillon’s motion to dismiss for want of a speedy
trial. The Vermont Supreme Court, however, reversed, holding that
Brillon’s conviction must be vacated, and the charges against him dis
missed, because the State did not accord him the speedy trial required
by the Sixth Amendment. Citing the balancing test this Court stated
in Barker v. Wingo, 407 U. S. 514, the Vermont Supreme Court con
cluded that all four factors described in Barker—“[l]ength of delay, the
reason for the delay, the defendant’s assertion of his right, and prejudice
to the defendant,” id., at 530—weighed against the State. Weighing
heavily in Brillon’s favor, the Vermont court said, the three-year delay
in bringing him to trial was “extreme.” In assessing the reasons for
that delay, the court separately considered the period of each counsel’s
representation. It acknowledged that the first year, when Brillon was
represented by his first and third lawyers, should not count against the
State. But the court counted much of the remaining two years against
the State. Delays in that period, the court determined, were caused,
for the most part, by the failure or unwillingness of several of the as
signed counsel, over an inordinate period of time, to move the case for
ward. As for the third and fourth Barker v. Wingo factors, the court
found that Brillon repeatedly and adamantly demanded a trial and that
his lengthy pretrial incarceration was prejudicial.
Held: The Vermont Supreme Court erred in ranking assigned counsel es
sentially as state actors in the criminal justice system. Assigned coun

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sel, just as retained counsel, act on behalf of their clients, and delays
sought by counsel are ordinarily attributable to the defendants they
represent. Pp. 89–94.
(a) Primarily at issue here is the reason for the delay in Brillon’s trial.
In applying Barker, the Court has asked “whether the government or
the criminal defendant is more to blame for th[e] delay.” Doggett v.
United States, 505 U. S. 647, 651. Delay “to hamper the defense”
weighs heavily against the prosecution, Barker, 407 U. S., at 531, while
delay caused by the defense weighs against the defendant, id., at 529.
Because “the attorney is the [defendant’s] agent when acting, or failing
to act, in furtherance of the litigation,” delay caused by the defendant’s
counsel is charged against the defendant. Coleman v. Thompson, 501
U. S. 722, 753. The same principle applies whether counsel is privately
retained or publicly assigned, for “ ‘[o]nce a lawyer has undertaken the
representation of an accused, the duties and obligations are the same
whether the lawyer is privately retained, appointed, or serving in a
legal aid or defender program.’ ” Polk County v. Dodson, 454 U. S. 312,
318. Unlike a prosecutor or the court, assigned counsel ordinarily is
not considered a state actor. Pp. 89–91.
(b) Although the balance arrived at in close cases ordinarily would
not prompt this Court’s review, the Vermont Supreme Court made a
fundamental error in its application of Barker that calls for this Court’s
correction. The court erred in attributing to the State delays caused
by the failure of several assigned counsel to move Brillon’s case forward
and in failing adequately to take into account the role of Brillon’s disrup
tive behavior in the overall balance. Pp. 91–94.
(1) An assigned counsel’s failure to move the case forward does not
warrant attribution of delay to the State. Most of the delay the Ver
mont court attributed to the State must therefore be attributed to
Brillon as delays caused by his counsel, each of whom requested time
extensions. Their inability or unwillingness to move the case forward
may not be attributed to the State simply because they are assigned
counsel. A contrary conclusion could encourage appointed counsel to
delay proceedings by seeking unreasonable continuances, hoping
thereby to obtain a dismissal of the indictment on speedy-trial grounds.
Trial courts might well respond by viewing continuance requests made
by appointed counsel with skepticism, concerned that even an ap
parently genuine need for more time is in reality a delay tactic. Yet
the same considerations would not attend a privately retained counsel’s
requests for time extensions. There is no justification for treating de
fendants’ speedy-trial claims differently based on whether their counsel
is privately retained or publicly assigned. Pp. 92–93.

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(2) The Vermont Supreme Court further erred by treating the pe
riod of each counsel’s representation discretely. The court failed appro
priately to take into account Brillon’s role during the first year of delay.
Brillon sought to dismiss his first attorney on the eve of trial. His
strident, aggressive behavior with regard to his third attorney further
impeded prompt trial and likely made it more difficult for the Defender
General’s office to find replacement counsel. Absent Brillon’s efforts to
force the withdrawal of his first and third attorneys, no speedy-trial
issue would have arisen. Pp. 93–94.
(c) The general rule attributing to the defendant delay caused by as
signed counsel is not absolute. Delay resulting from a systemic break
down in the public defender system could be charged to the State.
Cf. Polk County, 454 U. S., at 324–325. But the Vermont Supreme
Court made no determination, and nothing in the record suggests, that
institutional problems caused any part of the delay in Brillon’s case.
P. 94.
183 Vt. 475, 955 A. 2d 1108, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Roberts,
C. J., and Scalia, Kennedy, Souter, Thomas, and Alito, JJ., joined.
Breyer, J., filed a dissenting opinion, in which Stevens, J., joined, post,
p. 95.
Christina Rainville argued the cause for petitioner.
With her on the briefs was Erica A. Marthage.
Leondra R. Kruger argued the cause for the United States
as amicus curiae urging reversal. With her on the brief
were former Solicitor General Garre, Acting Assistant At
torney General Friedrich, then-Deputy Solicitor General
Dreeben, and Joseph C. Wyderko.
William A. Nelson argued the cause for respondent.
With him on the brief was Donald B. Verrilli, Jr.*
*Briefs of amici curiae urging reversal were filed for the State of Utah
et al. by Mark L. Shurtleff, Attorney General of Utah, J. Frederic Voros,
Jr., Chief, Criminal Appeals Division, and Christine F. Soltis and Ryan
D. Tenney, Assistant Attorneys General, by Richard S. Gebelein, Chief
Deputy Attorney General of Delaware, and by the Attorneys General for
their respective States as follows: Troy King of Alabama, Talis J. Colberg
of Alaska, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, John
W. Suthers of Colorado, Bill McCollum of Florida, Mark J. Bennett of

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84 VERMONT v. BRILLON
Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
This case concerns the Sixth Amendment guarantee that
“[i]n all criminal prosecutions, the accused shall enjoy the
right to a speedy . . . trial.” Michael Brillon, defendant
below, respondent here, was arrested in July 2001 on felony
domestic assault and habitual offender charges. Nearly
three years later, in June 2004, he was tried by jury, found
guilty as charged, and sentenced to 12 to 20 years in prison.
The Vermont Supreme Court vacated Brillon’s conviction
and held that the charges against him must be dismissed
because he had been denied his right to a speedy trial.
During the time between Brillon’s arrest and his trial, at
least six different attorneys were appointed to represent
him. Brillon “fired” the first, who served from July 2001 to
February 2002. His third lawyer, who served from March
2002 until June 2002, was allowed to withdraw when he re
ported that Brillon had threatened his life. The Vermont
Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Steve
Carter of Indiana, Thomas J. Miller of Iowa, Steve Six of Kansas, Jack
Conway of Kentucky, G. Steven Rowe of Maine, Martha Coakley of Massa
chusetts, Michael A. Cox of Michigan, Lori Swanson of Minnesota, Mike
McGrath of Montana, Jon Bruning of Nebraska, Catherine Cortez Masto
of Nevada, Kelly A. Ayotte of New Hampshire, Anne Milgram of New
Jersey, Gary K. King of New Mexico, Roy Cooper of North Carolina,
Wayne Stenehjem of North Dakota, Nancy H. Rogers of Ohio, W. A. Drew
Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett,
Jr., of Pennsylvania, Patrick C. Lynch of Rhode Island, Henry D. McMas
ter of South Carolina, Lawrence E. Long of South Dakota, Robert E.
Cooper, Jr., of Tennessee, Greg Abbott of Texas, Robert F. McDonnell of
Virginia, Robert M. McKenna of Washington, and Bruce A. Salzburg of
Wyoming; and for the National Governors Association et al. by Richard
Ruda.
Anthony J. Franze, Steven R. Shapiro, Robin L. Dahlberg, and Maureen
Dimino filed a brief for the American Civil Liberties Union et al. as amici
curiae urging affirmance.
Briefs of amici curiae were filed for Retired State Court Justices by
Samuel Spital and Alan D. Reitzfeld; and for the Vermont Network
Against Domestic and Sexual Violence et al. by Cheryl Hanna.

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Supreme Court charged against Brillon the delays associated
with those periods, but charged against the State periods in
which assigned counsel failed “to move his case forward.”
183 Vt. 475, 494–495, 955 A. 2d 1108, 1121, 1122 (2008).
We hold that the Vermont Supreme Court erred in ranking
assigned counsel essentially as state actors in the criminal
justice system. Assigned counsel, just as retained counsel,
act on behalf of their clients, and delays sought by counsel
are ordinarily attributable to the defendants they represent.
For a total of some six months of the time that elapsed be
tween Brillon’s arrest and his trial, Brillon lacked an attor
ney. The State may be charged with those months if the
gaps resulted from the trial court’s failure to appoint replace
ment counsel with dispatch. Similarly, the State may bear
responsibility if there is “a breakdown in the public defender
system.” Id., at 479–480, 955 A. 2d, at 1111. But, as the
Vermont Supreme Court acknowledged, id., at 500, 955
A. 2d, at 1126, the record does not establish any such institu
tional breakdown.
I
On July 27, 2001, Michael Brillon was arrested after strik
ing his girlfriend. Three days later he was arraigned in
state court in Bennington County, Vermont, and charged
with felony domestic assault. His alleged status as a habit
ual offender exposed him to a potential life sentence. The
court ordered him held without bail.
Richard Ammons, from the county public defender’s office,
was assigned on the day of arraignment as Brillon’s first
counsel.1 In October, Ammons filed a motion to recuse the
trial judge. It was denied the next month and trial was
scheduled for February 2002. In mid-January, Ammons
1 Vermont’s Defender General has “the primary responsibility for pro
viding needy persons with legal services.” Vt. Stat. Ann., Tit. 13,
§ 5253(a) (1998). These services may be provided “personally, through
public defenders,” or through contract attorneys. Ibid.

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moved for a continuance, but the State objected, and the trial
court denied the motion.
On February 22, four days before the jury draw, Ammons
again moved for a continuance, citing his heavy workload and
the need for further investigation. Ammons acknowledged
that any delay would not count (presumably against the
State) for speedy-trial purposes. The State opposed the
motion,2 and at the conclusion of a hearing, the trial court
denied it. Brillon, participating in the proceedings through
interactive television, then announced: “You’re fired, Rick.”
App. 187. Three days later, the trial court—over the State’s
objection—granted Ammons’ motion to withdraw as counsel,
citing Brillon’s termination of Ammons and Ammons’ state
ment that he could no longer zealously represent Brillon.3
The trial court warned Brillon that further delay would
occur while a new attorney became familiar with the case.
The same day, the trial court appointed a second attorney,
but he immediately withdrew based on a conflict.
On March 1, 2002, Gerard Altieri was assigned as Brillon’s
third counsel. On May 20, Brillon filed a motion to dismiss
Altieri for, among other reasons, failure to file motions,
“[v]irtually no communication whatsoever,” and his lack of
diligence “because of heavy case load.” Id., ¶¶ 2, 5, at 113–
114. At a June 11 hearing, Altieri denied several of Brillon’s
allegations, noted his disagreement with Brillon’s trial strat
2 The State expressed its concern that the continuance request was “just
part and parcel of an effort by the defense to have the Court not hear
this matter.” App. 180. Under Vermont procedures, the judge presiding
over the trial was scheduled to “rotate” out of the county where Brillon’s
case was pending in March 2002. See id., ¶ 6, at 109. Thus, a contin
uance past March would have caused a different judge to preside over
Brillon’s trial, despite the denial of his motion to recuse the initial judge.
Ammons requested a continuance until April.
3 Ammons also cited as cause to withdraw, “certain irreconcilable differ
ences in preferred approach between Mr. Brillon and counsel as to trial
strategy, as well as other legitimate legal decisions.” Id., ¶ 2, at 104.

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egy,4 and insisted he had plenty of time to prepare. The
State opposed Brillon’s motion as well. Near the end of the
hearing, however, Altieri moved to withdraw on the ground
that Brillon had threatened his life during a break in the
proceedings. The trial court granted Brillon’s motion to dis
miss Altieri, but warned Brillon that “this is somewhat of a
dubious victory in your case because it simply prolongs the
time that you will remain in jail until we can bring this mat
ter to trial.” Id., at 226.
That same day, the trial court appointed Paul Donaldson
as Brillon’s fourth counsel. At an August 5 status confer
ence, Donaldson requested additional time to conduct discov
ery in light of his caseload. A few weeks later, Brillon sent
a letter to the court complaining about Donaldson’s unre
sponsiveness and lack of competence. Two months later,
Brillon filed a motion to dismiss Donaldson—similar to his
motion to dismiss Altieri—for failure to file motions and “vir
tually no communication whatsoever.” Id., ¶¶ 1, 2, at 115–
116. At a November 26 hearing, Donaldson reported that
his contract with the Defender General’s office had expired
in June and that he had been in discussions to have Brillon’s
case reassigned. The trial court released Donaldson from
the case “[w]ithout making any findings regarding the ade
quacy of [Donaldson]’s representation.” 183 Vt., at 490, 955
A. 2d, at 1119. Cf. post, at 95–96.
Brillon’s fifth counsel, David Sleigh, was not assigned until
January 15, 2003; Brillon was without counsel during the in
tervening two months. On February 25, Sleigh sought ex
tensions of various discovery deadlines, noting that he had
been in trial out of town. App. 117. On April 10, however,
Sleigh withdrew from the case, based on “modifications to
[his] firm’s contract with the Defender General.” Id., at 158.
4 Specifically, Altieri appeared reluctant to follow Brillon’s tactic that he
“bring in a lot of people” at trial, “some of them young kids and relatives
. . . in an attempt by Mr. Brillon—this is his theory—I don’t want to use
the words trash, [to] impeach [the victim].” Id., at 216–217.

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Brillon was then without counsel for the next four months.
On June 20, the Defender General’s office notified the court
that it had received “funding from the legislature” and would
hire a new special felony unit defender for Brillon. Id., at
159. On August 1, Kathleen Moore was appointed as Bril
lon’s sixth counsel. The trial court set November 7 as the
deadline for motions, but granted several extensions in ac
cord with the parties’ stipulation. On February 23, 2004,
Moore filed a motion to dismiss for lack of a speedy trial.
The trial court denied the motion on April 19.
The case finally went to trial on June 14, 2004. Brillon
was found guilty and sentenced to 12 to 20 years in prison.
The trial court denied a post-trial motion to dismiss for want
of a speedy trial, concluding that the delay in Brillon’s trial
was “in large part the result of his own actions” and that
Brillon had “failed to demonstrate prejudice as a result of
[the] pre-trial delay.” App. to Pet. for Cert. 72.
On appeal, the Vermont Supreme Court held 3 to 2 that
Brillon’s conviction must be vacated and the charges dis
missed for violation of his Sixth Amendment right to a
speedy trial. Citing the balancing test of Barker v. Wingo,
407 U. S. 514 (1972), the majority concluded that all four of
the factors described in Barker—“[l]ength of delay, the rea
son for the delay, the defendant’s assertion of his right, and
prejudice to the defendant”—weighed against the State.
Id., at 530.
The court first found that the three-year delay in bringing
Brillon to trial was “extreme” and weighed heavily in his
favor. See 183 Vt., at 486, 955 A. 2d, at 1116. In assessing
the reasons for that delay, the Vermont Supreme Court sepa
rately considered the period of each counsel’s representation.
It acknowledged that the first year, when Brillon was repre
sented by Ammons and Altieri, should not count against the
State. Id., at 492, 955 A. 2d, at 1120. But the court counted
much of the remaining two years against the State for delays
“caused, for the most part, by the failure of several of defend

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ant’s assigned counsel, over an inordinate period of time, to
move his case forward.” Id., at 495, 955 A. 2d, at 1122. As
for the third and fourth factors, the court found that Brillon
“repeatedly and adamantly demanded to be tried,” ibid., and
that his “lengthy pretrial incarceration” was prejudicial, de
spite his insubstantial assertions of evidentiary prejudice,
id., at 500, 955 A. 2d, at 1125.
The dissent strongly disputed the majority’s characteriza
tion of the periods of delay. It concluded that “the lion’s
share of delay in this case is attributable to defendant, and
not to the state.” Id., at 502, 955 A. 2d, at 1127. But for
Brillon’s “repeated maneuvers to dismiss his lawyers and
avoid trial through the first eleven months following arraign
ment,” the dissent explained, “the difficulty in finding addi
tional counsel would not have arisen.” Id., at 504, 955 A. 2d,
at 1128.
We granted certiorari, 554 U. S. 945 (2008),5 and now re
verse the judgment of the Vermont Supreme Court.
II
The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy
. . . trial.” The speedy-trial right is “amorphous,” “slip
pery,” and “necessarily relative.” Barker, 407 U. S., at 522
(quoting Beavers v. Haubert, 198 U. S. 77, 87 (1905)). It
is “consistent with delays and depend[ent] upon circum
stances.” 407 U. S., at 522 (internal quotation marks omit
ted). In Barker, the Court refused to “quantif[y]” the right
5 Vermont’s Constitution contains a speedy-trial clause which reads:
“[I]n all prosecutions for criminal offenses, a person hath a right to . . . a
speedy public trial by an impartial jury . . . .” Vt. Const., Ch. I, Art. 10.
Notably, the Vermont Supreme Court made no ruling under the State’s
own prescription, but instead relied solely on the Federal Constitution.
Because it did so, our review authority was properly invoked and exer
cised. See Oregon v. Hass, 420 U. S. 714, 719–720 (1975); Ginsburg, Book
Review, 92 Harv. L. Rev. 340, 343–344 (1978). But see post, p. 95.

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“into a specified number of days or months” or to hinge the
right on a defendant’s explicit request for a speedy trial.
Id., at 522–525. Rejecting such “inflexible approaches,”
Barker established a “balancing test, in which the conduct
of both the prosecution and the defendant are weighed.”
Id., at 529, 530. “[S]ome of the factors” that courts should
weigh include “[l]ength of delay, the reason for the delay,
the defendant’s assertion of his right, and prejudice to the
defendant.” Ibid.
Primarily at issue here is the reason for the delay in Bril
lon’s trial. Barker instructs that “different weights should
be assigned to different reasons,” id., at 531, and in applying
Barker, we have asked “whether the government or the
criminal defendant is more to blame for th[e] delay,” Doggett
v. United States, 505 U. S. 647, 651 (1992). Deliberate delay
“to hamper the defense” weighs heavily against the prosecu
tion. Barker, 407 U. S., at 531. “[M]ore neutral reason[s]
such as negligence or overcrowded courts” weigh less heav
ily “but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the gov
ernment rather than with the defendant.” Ibid.
In contrast, delay caused by the defense weighs against
the defendant: “[I]f delay is attributable to the defendant,
then his waiver may be given effect under standard waiver
doctrine.” Id., at 529. Cf. United States v. Loud Hawk, 474
U. S. 302, 316 (1986) (noting that a defendant whose trial was
delayed by his interlocutory appeal “normally should not be
able . . . to reap the reward of dismissal for failure to receive
a speedy trial”). That rule accords with the reality that de
fendants may have incentives to employ delay as a “defense
tactic”: delay may “work to the accused’s advantage” because
“witnesses may become unavailable or their memories may
fade” over time. Barker, 407 U. S., at 521.
Because “the attorney is the [defendant’s] agent when act
ing, or failing to act, in furtherance of the litigation,” de

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lay caused by the defendant’s counsel is also charged against
the defendant. Coleman v. Thompson, 501 U. S. 722, 753
(1991).6 The same principle applies whether counsel is pri
vately retained or publicly assigned, for “[o]nce a lawyer has
undertaken the representation of an accused, the duties and
obligations are the same whether the lawyer is privately re
tained, appointed, or serving in a legal aid or defender pro
gram.” Polk County v. Dodson, 454 U. S. 312, 318 (1981)
(internal quotation marks omitted). “Except for the source
of payment,” the relationship between a defendant and the
public defender representing him is “identical to that exist
ing between any other lawyer and client.” Ibid. Unlike a
prosecutor or the court, assigned counsel ordinarily is not
considered a state actor.7
III
Barker’s formulation “necessarily compels courts to ap
proach speedy trial cases on an ad hoc basis,” 407 U. S., at
530, and the balance arrived at in close cases ordinarily
would not prompt this Court’s review. But the Vermont Su
preme Court made a fundamental error in its application of
Barker that calls for this Court’s correction. The Vermont
Supreme Court erred in attributing to the State delays
caused by “the failure of several assigned counsel . . . to
move his case forward,” 183 Vt., at 494, 955 A. 2d, at 1122,
6 Several States’ speedy-trial statutes expressly exclude from computa
tion of the time limit continuances and delays caused by the defendant or
defense counsel. See, e. g., Cal. Penal Code Ann. § 1381 (West 2000); Ill.
Comp. Stat., ch. 725, § 5/103–5(f) (West 2006); N. Y. Crim. Proc. Law Ann.
§ 30.30(4) (West Supp. 2009); Alaska Rule Crim. Proc. 45(d) (1994); Ark.
Rule Crim. Proc. 28.3 (2006); Ind. Rule Crim. Proc. 4(A) (2009). See also
Brief for National Governors Association et al. as Amici Curiae 17–18,
and n. 12.
7 A public defender may act for the State, however, “when making hiring
and firing decisions on behalf of the State,” and “while performing certain
administrative and possibly investigative functions.” Polk County v.
Dodson, 454 U. S. 312, 325 (1981).

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and in failing adequately to take into account the role of Bril
lon’s disruptive behavior in the overall balance.
A
The Vermont Supreme Court’s opinion is driven by the
notion that delay caused by assigned counsel’s “inaction” or
failure “to move [the] case forward” is chargeable to the
State, not the defendant. Id., at 479, 494, 955 A. 2d, at 1111,
1122. In this case, that court concluded, “a significant por
tion of the delay in bringing defendant to trial must be at
tributed to the state, even though most of the delay was
caused by the inability or unwillingness of assigned counsel
to move the case forward.” Id., at 494, 955 A. 2d, at 1121.
We disagree. An assigned counsel’s failure “to move the
case forward” does not warrant attribution of delay to the
State. Contrary to the Vermont Supreme Court’s analysis,
assigned counsel generally are not state actors for purposes
of a speedy-trial claim. While the Vermont Defender Gen
eral’s office is indeed “part of the criminal justice system,”
ibid., the individual counsel here acted only on behalf of Bril
lon, not the State. See Polk County, 454 U. S., at 320–322
(rejecting the view that public defenders act under color of
state law because they are paid by the State). See also
supra, at 90–91.
Most of the delay that the Vermont Supreme Court attrib
uted to the State must therefore be attributed to Brillon as
delays caused by his counsel. During those periods, Brillon
was represented by Donaldson, Sleigh, and Moore, all of
whom requested extensions and continuances.8 Their “in
ability or unwillingness . . . to move the case forward,” 183
8 The State conceded before the Vermont Supreme Court that the period
of Sleigh’s representation—along with a six-month period of no represen
tation—was properly attributed to the State. 183 Vt. 475, 493, 955 A. 2d
1108, 1120–1121 (2008). The State sought to avoid its concession at oral
argument before this Court, but in the alternative, noted that the period
of Sleigh’s representation “is really inconsequential.” Tr. of Oral Arg.
5–6. We agree that in light of the three-year delay caused mostly by

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Vt., at 494, 955 A. 2d, at 1121, may not be attributed to the
State simply because they are assigned counsel.
A contrary conclusion could encourage appointed counsel
to delay proceedings by seeking unreasonable continuances,
hoping thereby to obtain a dismissal of the indictment on
speedy-trial grounds. Trial courts might well respond by
viewing continuance requests made by appointed counsel
with skepticism, concerned that even an apparently genuine
need for more time is in reality a delay tactic. Yet the same
considerations would not attend a privately retained coun
sel’s requests for time extensions. We see no justification
for treating defendants’ speedy-trial claims differently based
on whether their counsel is privately retained or publicly
assigned.
B
In addition to making assigned counsel’s “failure . . . to
move [the] case forward” the touchstone of its speedy-trial
inquiry, the Vermont Supreme Court further erred by treat
ing the period of each counsel’s representation discretely.
The factors identified in Barker “have no talismanic quali
ties; courts must still engage in a difficult and sensitive
balancing process.” 407 U. S., at 533. Yet the Vermont
Supreme Court failed appropriately to take into account
Brillon’s role during the first year of delay in “the chain of
events that started all this.” Tr. of Oral Arg. 46.
Brillon sought to dismiss Ammons on the eve of trial. His
strident, aggressive behavior with regard to Altieri, whom
he threatened, further impeded prompt trial and likely made
it more difficult for the Defender General’s office to find
replacement counsel. Even after the trial court’s warning
regarding delay, Brillon sought dismissal of yet another at
torney, Donaldson. Just as a State’s “deliberate attempt to
delay the trial in order to hamper the defense should be
Brillon, the attribution of Sleigh’s three-month representation does not tip
the balance for either side.

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94 VERMONT v. BRILLON
Opinion of the Court
weighted heavily against the [State],” Barker, 407 U. S., at
531, so too should a defendant’s deliberate attempt to disrupt
proceedings be weighted heavily against the defendant.
Absent Brillon’s deliberate efforts to force the withdrawal of
Ammons and Altieri, no speedy-trial issue would have
arisen. The effect of these earlier events should have been
factored into the court’s analysis of subsequent delay.9
C
The general rule attributing to the defendant delay caused
by assigned counsel is not absolute. Delay resulting from a
systemic “breakdown in the public defender system,” 183
Vt., at 479–480, 955 A. 2d, at 1111, could be charged to the
State. Cf. Polk County, 454 U. S., at 324–325. But the
Vermont Supreme Court made no determination, and noth
ing in the record suggests, that institutional problems caused
any part of the delay in Brillon’s case.
In sum, delays caused by defense counsel are properly at
tributed to the defendant, even where counsel is assigned.
“[A]ny inquiry into a speedy trial claim necessitates a func
tional analysis of the right in the particular context of the
case,” Barker, 407 U. S., at 522, and the record in this case
does not show that Brillon was denied his constitutional
right to a speedy trial.
* * *
For the reasons stated, the judgment of the Vermont Su
preme Court is reversed, and the case is remanded for fur
ther proceedings not inconsistent with this opinion.
It is so ordered.
9 Brillon lacked counsel for some six months. In light of his own role in
the initial periods of delay, however, this six-month period, even if attrib
uted to the State, does not establish a speedy-trial violation.

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Cite as: 556 U. S. 81 (2009) 95
Breyer, J., dissenting
Justice Breyer, with whom Justice Stevens joins,
dissenting.
We granted certiorari in this case to decide whether delays
caused “solely” by a public defender can be “charged against
the State pursuant to the test in Barker v. Wingo, 407 U. S.
514 (1972).” Pet. for Cert. i, ¶ 1. The case, in my view, does
not squarely present that question, for the Vermont Supreme
Court, when it found Michael Brillon’s trial unconstitution
ally delayed, did not count such delays against the State.
The court’s opinion for the most part makes that fact clear;
at worst some passages are ambiguous. Given these cir
cumstances, I would dismiss the writ of certiorari as improv
idently granted.
I
The relevant time period consists of slightly less than
three years, stretching from July 2001, when Brillon was in
dicted, until mid-June 2004, when he was convicted and sen
tenced. In light of Brillon’s improper behavior, see ante, at
85–87, the Vermont Supreme Court did not count months 1
through 12 (mid-July 2001 through mid-June 2002) against
the State. Noting the objection that Brillon had sought to
“intentionally sabotag[e] the criminal proceedings against
him,” the Vermont Supreme Court was explicit that this
time period “do[es] not count . . . against the [S]tate.” 183
Vt. 475, 492, 955 A. 2d 1108, 1120 (2008).
The Vermont Supreme Court did count months 13 through
17 (mid-June 2002 through November 2002) against the
State. It did so under circumstances where (1) Brillon’s
counsel, Paul Donaldson, revealed that his contract with the
defender general’s office had expired in June 2002—shortly
after (perhaps before!) he took over as Brillon’s counsel, App.
232–233, (2) he stated that this case was “basically the begin
ning of [his] departure from the contract,” ibid., and (3) he
made no filings, missed several deadlines, did “little or noth
ing” to “move his case forward,” and made only one brief
appearance at a status conference in mid-August, 183 Vt.,

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96 VERMONT v. BRILLON
Breyer, J., dissenting
at 493, 494, 955 A. 2d, at 1121. I believe it fairer to charac
terize this period, not as a period in which “assigned coun
sel” failed to move the case forward, ante, at 85, but as a
period in which Brillon, in practice, had no assigned counsel.
And, given that the State conceded its responsibility for de
lays caused by another defender who resigned for “contrac
tual reasons,” see infra this page, it is hardly unreasonable
that the Vermont Supreme Court counted this period of
delay against the State.
The Vermont Supreme Court also counted months 18
through 25 (the end of November 2002 through July 2003)
against the State. It did so because the State conceded in
its brief that this period of delay “cannot be attributed to
the defendant.” App. 78 (emphasis added). This concession
is not surprising in light of the fact that during much of this
period, Brillon was represented by David Sleigh, a contract
attorney, who during the course of his representation filed
nothing on Brillon’s behalf except a single motion seeking to
extend discovery. The record reflects no other actions by
Sleigh other than a letter sent to Brillon informing him that
“[a]s a result of modifications to our firm’s contract with the
Defender General, we will not be representing you in your
pending case.” Id., at 158. Brillon was left without counsel
for a period of nearly six months. The State explained in
conceding its responsibility for this delay that Sleigh had
been forced to withdraw “for contractual reasons,” and that
the defender general’s office had been unable to replace him
“for funding reasons.” Id., at 78.
Finally, the Vermont Supreme Court counted against the
State the last 11 months—from August 2003 to mid-June
2004. But it is impossible to conclude from the opinion
whether it did so because it held the State responsible for
the defender’s failure to “move the case forward,” or for
other reasons having nothing to do with counsel, namely, the
judge’s unavailability, see id., at 138, or the fact that “the
[case] files were incomplete” and “additional documents were

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97 Cite as: 556 U. S. 81 (2009)
Breyer, J., dissenting
needed from the State,” 183 Vt., at 491, 955 A. 2d, at 1120–
1121. Treating the opinion as charging the State on the
basis of the defender’s conduct is made more difficult by the
fact that Brillon did not argue below that Kathleen Moore,
his defender during this period, caused any delays. Appel
lant’s Reply Brief in No. 2005–167 (Vt.), 2007 WL 990004, *7.
II
In sum, I can find no convincing reason to believe the Ver
mont Supreme Court made the error of constitutional law
that the majority attributes to it. Rather than read ambigu
ities in its opinion against it, thereby assuming the presence
of the error the Court finds, I would dismiss the writ as
improvidently granted. As a majority nonetheless wishes
to decide the case, I would note that the Vermont Supreme
Court has considerable authority to supervise the appoint
ment of public defenders. See Vt. Stat. Ann., Tit. 13,
§§ 5204, 5272 (1998); see also Vt. Rule Crim. Proc. 44 (2003).
It consequently warrants leeway when it decides whether a
particular failing is properly attributed to assigned counsel
or instead to the failure of the defender general’s office prop
erly to assign counsel. Ante, at 94. I do not believe the
Vermont Supreme Court exceeded that leeway here. And I
would affirm its decision.
With respect, I dissent.