Prosecutor to Supreme Court: Keep offender in jail


Saturday, March 29
BENNINGTON — The Bennington County State's Attorney, citing what she calls factual and legal mistakes, has asked to re-argue a Vermont Supreme Court case that would free an area man convicted of domestic assault.

Erica Marthage is asking that the court reconsider its ruling In the case of Michael Brillon, whose 12- to 20-year sentence was vacated by the court because it took too much time before he went to trial. Brillon, first charged in 2001 with striking his girlfriend during an altercation, was imprisoned for three years while awaiting trial.

Brillon has remained incarcerated after the decision.

Marthage wrote that the decision incorrectly blames delays in the case on the state justice system.

"Much of the time that the court attributes to delays by the state were in fact delays caused by (the) defendant and defendant's counsel," Marthage said.

The motion said that several of the delays are directly the fault of the defendant. "On Oct. 22, 2002, (the) defendant filed a motion to dismiss his counsel. New counsel was assigned in November, and filed a motion to enlarge time on Feb. 26, 2003," Marthage wrote. "Clearly all of the time from July 2002 until new counsel was able to get up to speed on the case should be attributed to (the) defendant."

Marthage wrote that this would not be the last time Brillon changed his lawyer.

"Once a new lawyer — (the) defendant's sixth — was assigned in August 2003, she, too, needed time to prepare the case," the motion reads. "Quite simply, there is nothing that the trial court could have done to move this case along any quicker, other than to deny (the) defendant's many motions to change his trial counsel."

Significant delays

Indeed, Marthage argued, requests by defendants to replace their public defenders could be affected by the decision.

"As a result of this decision, the state must now oppose requests for a change of counsel because it will necessarily cause a significant delay," Marthage wrote. "Similarly, courts will hesitate to assign new counsel when the defendant requests it."

Marthage claimed that the court relied on a California Supreme Court case that does not agree with its reasoning. "Under the ... court's opinion in Johnson, what happened here — allowing a defendant to walk free and depriving the state of the opportunity to re-prosecute him — would never happen, unless this was the second time that (the) defendant's speedy trial rights were violated," Marthage wrote.

The motion claims that the decision could cause strain between public defenders and their clients.


"Under the decision, defendants will now be encouraged to object to continuances requested by their counsel, even if the continuances are in the client's interest," the motion reads. "Indeed, defendants will be encouraged to change counsel as often as possible in the hope that mere delay will force their freedom."

Marthage said that the decision, because it claims public defenders are part of the "state," could create a divide between rich and poor. The decision, wrote Marthage, could force the poor clients of public defenders to trial before they are ready, while private defenders would be under no such obligation for speediness.

William Nelson, Brillon's lawyer, said he was not very concerned that the court's decision would be overturned.

"Motions for re-argument are rarely granted," Nelson said. "I haven't seen this motion, so I can't comment on the likelihood of it being granted."

"As a general rule, motions for re-argument are often last-gasp measures," Nelson said.

Already addressed

Nelson said that the motion's claims that the delays in the case were the fault of Brillon have already been addressed.

"I think that was also the take of the dissenters in the original opinion," Nelson said. "The majority dealt with these claims in their decision, and found that the bulk of the delays were caused by the defense counsel."

The Supreme Court's decision, issued and written by Associate Justice Denise Johnson, said the public defender's office was to blame for the delay.

"The inaction of assigned counsel does not relieve the state of its duty, through implementation of the criminal justice system, to provide (the) defendant with a constitutionally guaranteed speedy trial," Johnson wrote. "Indeed, the defender general's office is a part of the criminal justice system and an arm of the state."

Johnson wrote that the public defender system should be examined, mentioning that this problem could repeat itself.

Justice Brian Burgess and Chief Justice Paul Reiber dissented with the decision.

"Today, the majority frees a convicted woman beater and habitual offender, not because of any infirmity in the evidence or unfair prejudice in the trial by which a jury found him guilty, but because the defendant delayed the proceedings for almost 22 months," Burgess said. "Despite repeated early efforts by the prosecution and the court to commence trial, the defendant engaged in a pattern of disqualifying his lawyers and monkey-wrenching his scheduled trials in this and related cases."

Burgess claimed the fault of the delays rested upon Brillon himself.


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