Courts across the country force indigent criminal defendants to spend absurd amounts of time in pretrial detention, where they endure the horrors of incarceration, the stigma of guilt, and the diminished ability to mount an effective defense. These defendants spend months, years, even decades, waiting for their innocence to be vindicated. The consequence of this delay is that the poor, regardless of their innocence, are de facto prisoners, and their public defenders, once imagined as the fulfillment of our Constitution’s loftiest ideals, are the unknowing foot soldiers of chronic crisis. The criminal legal system forces these public defenders to endure crushing caseloads that jeopardize their clients’ lives. Yet the legal community has become acclimated to this status quo, a “systemic breakdown” in indigent criminal defense—one that punishes the poor and subjects them to unreasonable and unconscionable delay.
This Note brings attention to the madness. Centered around the Supreme Court’s decision in Vermont v. Brillon, which coined the term that inadequately addresses this unconscionable delay, this Note argues that there has indeed been “systemic breakdown” in our public defender system. The government hamstrings public defender offices by wrongfully blaming them and their indigent clients for the same delay these offices and defendants decry. But many courts, including the highest court in the land, refuse to see this breakdown and instead construe the law to absolve the government of its own inadequacy. Beginning with the country’s history of indigent criminal defense, this Note connects political choices with Supreme Court decisions to argue that public defenders, like their clients, are the victims of constitutional root rot. This Note will be the first to comprehensively analyze these Supreme Court decisions’ effects on states and state law. It will also be the first attempt to fill the gap that the Supreme Court has harbored: It will offer a definition of systemic breakdown that public defenders and their clients can use to better vindicate indigent defendants’ fundamental right to a speedy trial.
Table of Contents Show
Introduction
If constitutional democracy means respect for individual freedom, then the criminal courts are an obvious site for measuring democracy’s strength. An honest look, then, at our criminal courts would warrant both outrage and alarm. On paper, the U.S. Constitution’s Sixth Amendment guarantees both a right to a “speedy trial” and a right to the “assistance of counsel,”[1] which the Supreme Court has defined as competent, sufficiently prepared counsel.[2] Yet across the country, the indigent criminal defendant—whose individual freedom is on the line in the most immediate and intimate way—is forced to choose between these two fundamental rights due to states’, cities’, and counties’ systemic under resourcing of indigent criminal defense. Too often this underfunding—resulting in breakneck caseloads, low pay, and subpar service and attention to clients[3]—forces indigent criminal defendants to choose the lesser of two evils. These defendants must weigh whether to go to trial within a reasonable period and consequently rush their overworked, underfunded public defender into a trial they are not ready for. Or, defendants must sacrifice weeks, months, or years of their lives for an improved chance to win at trial, largely because their public defender has neither the time nor the resources to timely move the case forward.[4]
In both scenarios, the defendant loses. In fact, the Supreme Court has decreed it so. Because a public defender has been defined as “‘the [defendant’s] agent when acting, or failing to act, in furtherance of the litigation,’ delay caused by the defendant’s counsel is also charged against the defendant.”[5] In an indigent criminal system laden with decades of underfunding, the Court has made sure not to blame the government for this reality—the same government that underfunds public defender offices.[6] Instead, the Court ensures that blame is attributed to the person that often has the most to lose from this delay: the defendant.
Under-resourced public defenders have no good cards to play. On one hand, they risk unpreparedness; on the other, they inadvertently perpetuate mass incarceration by facilitating the detention of their client before the client has been proven guilty.[7] In complex criminal cases, delay can directly conflict with an attorney’s effective counsel requirement and prejudice a defendant’s case as witnesses disappear and memories fade. But even in cases that are relatively simple, backed-up courts and overwhelmed counsel force defendants into undue delay. The individual public defender, and even the public defender’s office, has little say in the matter.[8] State and local public defender offices often operate at the whim of their respective governments, tied to the budgets politicians craft to uphold their criminal legal system.[9] Of course, this undergirds the rampant plea deals[10] that public defenders advise their clients to take. These plea deals serve as time- and cost-saving measures, often forcing a guilty conviction upon an impoverished, legally innocent defendant.[11] Time and again, for decades, political leaders, organizers, attorneys, and defendants have denounced the subpar services that public defenders are known to offer, yet public defenders remain underfunded and understaffed.
The public defender position, at its inception, held promise. Ideated as a hybrid between a state employee and a private advocate, the public defender became a government-lawyer chimera promising the consistency and independence of government funding with the adversarial zeal of a private criminal attorney. This chimera had the potential to check the government’s prosecutorial power.
But rather than treating the public defender as the hybrid that it is, the Supreme Court has categorized the public defender like any other private criminal attorney: an agent of the defendant and not a state actor.[12] In other words, public defenders are not extensions of the government. The Court reformulated these government-paid attorneys as quasi-private actors, making public-defender delay the fault of the defendant, not the government.[13] Combine that with the government’s perverse incentives to underfund public defenders and what results is a seventy-five-year-old snowball effect. The public defender system becomes a shell of Gideon v. Wainwright’s original promise to guarantee competent counsel for even the poorest of defendants to ensure fair, Constitution-abiding trials.[14] Looking at the public defender position’s history before, during, and after Gideon shows that one court decision after another has nevertheless fed, cemented, and enshrined widespread “systemic breakdown” in the public defender system that indigent criminal defendants dread. The Supreme Court and lower courts have not gone far enough to craft a sufficient response to such “systemic breakdown,” even after Justice Ginsburg coined the term in the Vermont v. Brillon decision.[15]
The reader may have noticed that I have yet to define “systemic breakdown” despite quoting it numerous times. That is the point. After landlocking public defenders as their defendants’ agents and not state actors, leaving the government unaccountable for its own delay, the Supreme Court offered a shallow ravine for indigent criminal defendants to traverse: “Delay resulting from a ‘systemic breakdown in the public defender system’ could be charged to the State.”[16] But the Court offered no reasonable definition for what it deemed systemic breakdown. It only determined there was none in Brillon despite several public defenders being unable to perform their duties because of tight budgets and ballooning caseloads.[17] This undefined caveat left courts in disarray, either scrambling to properly diagnose the courtroom filibuster, or—overwhelmed by the inadequate resources courts across the system experience—acquiescing to the unceasing status quo. Relief remained just out of reach, with little consideration for the Constitution.
If a criminal legal system cannot afford to adjudicate cases within a reasonable amount of time, it should not adjudicate cases. The Supreme Court’s Brillon framework, I argue, follows flawed precedent and is insufficient to address unreasonable delay in criminal cases. Its proffered caveat offers no guidance to lower courts, allowing it and lower courts to continue blaming defendants for delay caused by the state’s own under resourcing. And Brillon relegates public defenders and defendants to be the victims of the delay they decry.
The Supreme Court should properly define systemic breakdown to create an enforceable rule for courts to follow. This Note offers that rule and analytical considerations to address the rights of indigent criminal defendants while upholding the Constitution’s promised protection against a potentially oppressive regime.[18] This Note offers three new contributions to the discourse on the right to counsel and right to a speedy trial. First, it offers a comprehensive analysis of how state courts have responded to the Supreme Court’s line of speedy trial cases dealing with “systemic breakdown.” Second, it offers a “systemic breakdown” definition that honors the rights our society has deemed fundamental and that offers lower courts guidance to decide real cases. Third, it gathers legislative, jurisprudential, and policy recommendations that can most immediately respond to this national crisis.
Part I of this Note digs up and sheds light on the root rot. It articulates how the historical crisis in indigent criminal defense, including public defender shortages, extreme workloads, and low pay, creates an undeniable atmosphere of systemic breakdown. Public defenders have never had proper resources; they have never been supported adequately and have always been marred by financial struggle in every decade since they were imagined. Previous authors’ and organizations’ work have documented much of this history. I cite much (but surely not all) of this commentary to illustrate the chronic crisis. There is no debate here. The legal community is in widespread agreement that indigent criminal defense is a failure if measured against our Supreme Court’s aspirations.
Part II explores the patchwork of Supreme Court decisions that created our current reality. I discuss the main case of analysis for the speedy trial right, Barker v. Wingo, and corresponding Barker factors, within which the systemic breakdown caveat fits.[19] Further light will be shone on the Court’s declaration in Polk County v. Dodson that public defenders are not state actors (not only shielding public defenders from § 1983 liability but also shielding state and local governments from adequately funding their public defender offices).[20] And though Justice Ginsburg in Vermont v. Brillon qualifies her cementing decision with a silver lining—offering defendants the opportunity to challenge the criminal legal system if their speedy trial right has been violated by “systemic breakdown”[21]—I conclude this Part by arguing that the Court’s undefined caveat is little help and too high a bar to be of any use.
Part III explores how these Supreme Court decisions reverberated throughout the states, where most of the criminal legal action happens. I highlight cases in three states, California, Georgia, and Mississippi, where the Court’s caveat offered no relief for the systemic breakdown it created. These and the cases discussed at the beginning of Part IV are the only state cases to come to judgment on systemic breakdown since Justice Ginsburg coined the term in Brillon.
Part IV will draw from these court interpretations and reverse engineer a definition of systemic breakdown that will better vindicate defendants’ constitutional rights. As a preview, systemic breakdown in the public defender system should account for the administrative and resource limits of the courts yet still prioritize the constitutional imperatives of the speedy trial right. It must not be so nebulous as to allow lower courts to retain the status quo disguised as judicial balancing and must not allow defendants to fall prey to the delay they decry. There should be a bright-line rule, a time limit below which reasonable delay may exist and above which unreasonable delay cannot, at least not without challenge. Finally, judicial discretion around factors determining violation and good cause for delay should be retained, followed, and enforced. Speedy trial right jurisprudence must resist blaming the victims of systemic breakdown and hold to account the true systemic shortchangers: the government.
Part V offers paths forward. Not only does it suggest courts adopt this Note’s definition of systemic breakdown, but it also looks comprehensively at the public defender profession and pushes for meaningful changes in defense advocacy. Recognizing the ultimate panacea would be a complete upheaval of the current criminal system, in a world where there are (too many) indigent defendants, it is better that they have adequate, effective representation than not.
I. The Public Defender: History and Reality
Part I connects modernity to history to show the pervasiveness of systemic breakdown in the indigent criminal defendant context. The role of this Part is to highlight how undeniably the overall context of resource constraints, tight budgets, and around-the-clock working conditions have strained the quality of service and justice that public defenders can provide. Such ubiquitous underfunding and relentless working conditions should have made it a rudimentary task to define systemic breakdown. But the Supreme Court refused to do so, leaving lower courts in disarray and ultimately allowing the government to hide behind obscurity, unaccountable to the constitutional crisis it created.
A. Current Reality
In August 2024, Sacramento County, California, public defenders announced their intention to strike.[22] With the county’s criminal prosecutors in tow, their walkout protested low pay amid rising costs of living. Recognized as among the most respected public defenders in the state, they nevertheless could not make ends meet. “Low pay, the attorneys said, had turned their overworked district attorneys’ and public defenders’ offices into revolving doors, with mid-level and senior attorneys fleeing, . . . leaving work to less experienced lawyers.”[23] There were nearly eleven thousand cases filed the year prior, among the highest filing rates in the state.[24] Such circumstances also impacted the public defenders’ clients seeking exoneration. Low pay and untenable working conditions, at least in the short term, exacerbated the delay defendants experienced, though Sacramento County’s striking attorneys ensured contingencies were in place to meet their ethical obligations to their clients.[25] For instance, the public defenders finished ongoing trials and preliminary hearings before striking, continued to work on their conservatorship cases, and stayed on the job for juvenile court hearings.[26]
Public defenders have unionized and commenced strikes across the country against the conditions that inhibit them from doing basic parts of their job. Los Angeles County’s Public Defender Office unionized in 2021[27] following controversial cases that reflected serious financial issues within the county.[28] Minnesota’s public defenders, representing over eleven thousand attorneys, authorized a strike in 2022, stating “[w]e don’t have the time necessary to read through all the evidence in our case. We don’t have the time to talk to our clients. We don’t have time to meet with our clients in jail sufficiently.”[29] Colorado’s public defenders formed the Defenders Union of Colorado in 2022, following a “raw assessment” of the clients they failed to adequately serve due to “[e]xcessive workloads and unsustainable working conditions.”[30]
Of course, there may be many reasons why public defenders would go on strike that are not linked to a systemic crisis in indigent criminal defense. But the record speaks for itself. Data compiled over decades show that offices in Sacramento County, Los Angeles County, Minnesota, Colorado, and elsewhere have stared down the barrel of crisis for as long as such data have been collected.[31] Public defenders, even those with decades of experience, are some of the worst paid attorneys, according to a 2023 nationwide study.[32] The National Association of Counties has reported that due to declining revenues and budget shortfalls, county officials have had to choose between funding health care “and upholding the constitutional commitment to guarantee adequate public defense services.”[33]
These circumstances have only worsened; COVID-19 made this ever apparent. A 2020 report quoted public defenders describing their clients’ conditions in jail: “sleeping on the floor in the jail because there aren’t enough beds”; “lack[ing] access to hygiene products”; “not being able to go to treatment, not receiving good time because limited transports, no drug court, more relapse and arrests, clients losing jobs and limited mental health services”; and “[not being able] to reach an attorney who meets constitutional standards of competency [and] preparedness.”[34] Public defenders were in consistent agreement that the widespread “indifference shown by many toward their clients, and overall lagging response confirmed their beliefs that the current criminal legal system is bloated, locking up too many people with no real benefit.”[35]
Compounding these circumstances are crushing caseloads. In 2019, The New York Times reported public defenders having two to five times the number of cases recommended by national standards.[36] In some cities, attorneys have so many cases they can literally only spend minutes with a client. In 2017, defenders in Atlanta had an average of fifty-nine minutes to prepare for a case, defenders in Detroit had thirty-two minutes per case, and defenders in New Orleans had only seven minutes per case.[37] Public defender funding has not caught up to the massive spike in incarceration that resulted from decades of mass incarceration.[38] The reality is public defenders are chronically, systematically underfunded. This not only affects their quality of life as attorneys but jeopardizes the constitutional rights of their defendants. Because of decades of neglect, public defenders have been forced to walk off the job to fulfill their duties as advocates.
Public defender strikes reflect the desperation attorneys feel, the hard choice they must make between short-term pain for long-term hope, and the contradiction between career practice and reality. Some attorneys, at great risk to their practice and career, have commented on the open secret that is the systematic underfunding of their counties’ public defender offices,[39] often the only source of legal representation for poor people accused of a crime. Yet public defenders—whose charge is to protect the rights of every defendant, presumed innocent until found guilty—inadvertently force their clients to endure de facto imprisonment through unconscionable delay. This runs counter to the very idea and fabric of our Constitution and democracy. In this dysfunctional system, no longer does the government need to convict an indigent defendant to imprison them; it need only underfund the defendant’s public defender to keep defendants behind bars.
The result of this underfunding is constitutional disaster. Defendants have faced two-year,[40] seven-year,[41] even nineteen-year pretrial delays,[42] all because their public defense counsel were unable to find the time and resources to bring these cases to trial. Widespread dysfunction has allowed one too many of these cases to exist. One day of delay can cost someone their job; one week their home, one year their family; any more is effectively someone’s life as they knew it. Yet only delay greater than a year is considered presumptively prejudicial,[43] with the Supreme Court refusing to concede a bright-line rule. This means the government in theory has the burden of showing why this delay was necessary, or else the defendant’s case is dismissed. Yet this burden is easily carried with courts’ leniency and exacerbation buoying the government’s case. Because of the Supreme Court’s precedent,[44] defendants can nevertheless face exorbitant time behind bars or be released on bail waiting for trial.
This reality should not only concern trial actors and defendants; it should concern all of us. Inefficient, inadequate public defense systems lead to a greater likelihood of the innocent, without their fair shake, becoming incarcerated. And it is expensive to keep people in jail. In 2007, the cost of incarcerating 2.3 million people nationally reached about $74 billion annually.[45] Taxpayer money going to prisons is money not going to housing, feeding, and educating communities. When a loved one becomes incarcerated, broken families and communities are the result. This mass incarceration further exacerbates a vicious cycle of social costs, making decently middling families poor and making poor families distressingly impoverished.[46] Where defendants must accommodate delay, both reasonable and unreasonable, they “jeopardize their employment—not only affecting their own lives, but the financial stability of their families.”[47] Delays remain a costly option for public defenders to deploy, clients to accept, and the public to pay for. From jail beds to jail shuttles back and forth whenever a trial date is pushed back, costs can compound quickly.[48]
Delay also erodes public trust. The delay an unprepared public defender causes will hasten both the defendant’s and the public’s lost confidence in the system to treat them fairly. Even those victims whose incentives lie in the quick conviction of their alleged adversary without adequate counsel recognize that such a conviction would not be justice. For instance, take the Vermont Network Against Domestic Violence, a victims advocacy group. In Vermont v. Brillon, the 2009 Supreme Court case that has shaped contemporary speedy trial right analysis, it submitted an amicus brief stating that, though it supported the government’s petition against defendant Brillon, who was charged with committing domestic violence, it agreed with the defendant that “it is always in the best interests of victims, whether they are defendants or witnesses in a criminal case, to have adequate counsel appointed in a timely manner. . . . A defendant’s right to assistance of counsel and right to a speedy trial are inevitably intertwined. . . . [B]oth must be respected by the Court.”[49] Delays impact a victim’s life “physically, emotionally, and financially” and make it less likely a victim will proceed with a case.[50] Diminished faith in the system begets resignation from the system itself, perpetuating crime and vigilantism.
These reasons are why the speedy trial right stands apart from the other enumerated Sixth Amendment rights: It concerns itself not only with the defendant’s interest in a quick resolution but also society’s interest in both a just and inexpensive judicial process. In all criminal prosecutions, the Sixth Amendment states “the accused shall enjoy the right to a speedy and public trial . . . and to have the Assistance of Counsel for his defense.”[51] The Sixth Amendment of the Constitution is a string of rights meant to protect the criminal defendant, who the Founders knew was among the most vulnerable against government tyranny.[52] Yet courts, constrained by the tyranny of administrative and financial burden, have made defendants choose between these fundamental rights in the name of unjust expedience, both historically and in modernity.[53]
B. History of Chronic Constitutional Crisis and Systemic Breakdown
From its inception, the public defender has been marred by struggle, poverty, and politics, and poor people have had inadequate representation in the country’s courts. Gideon v. Wainwright, which is recognized for its tectonic promise of counsel regardless of income, is a highwater mark in indigent criminal defense. But the years after Gideon’s promise showed it made indigent criminal defense worse,[54] leading to the contemporary realities of striking attorneys and de facto guilty defendants. This Section walks through the history of indigent criminal defense to show systemic breakdown is not a recent discovery; it is a feature, not a bug, of criminal jurisprudence.
Despite the Sixth Amendment’s language, there was a time in American history when indigent defendants had no protection or promise, either in reality or on paper, of counsel. In New York City in the 1890s for example, defendants too poor to afford a private attorney had to rely on volunteer organizations,[55] judicial discretion, or themselves. Jailhouse “shyster” attorneys preyed upon poor defendants’ anxiety and struck one-way plea deals after paying off prison guards.[56] The only promise of legal protection a criminal defendant received was through the defendant’s own wealth or the riches they could cobble together from loved ones.[57] Indeed, only the rich and well-connected could afford a private criminal attorney. All others relied on charity or the discretion of the trial court to appoint volunteer, unpaid counsel.[58] Otherwise, poor defendants were simply out of luck.[59]
This “shyster” era mostly plagued nineteenth and early twentieth century America. But in the 1910s and 1920s, the public defender concept began to gain steam.[60] A criminal defense attorney with consistent state support could address the indigent defense issue and provide representation to the impoverished. Though, the concept faced immediate political and practical roadblocks.
Prominently, because of its government-provided nature, the public defender was early coded as communist. The quasi-public innovation was seen as an affront to the American way of life: “free markets, independent professions, and a limited role for government.”[61] According to legal historian Sara Mayeux, a government-funded lawyer hired to combat the government was considered a “socialist-style project of coopting lawyers into a centralized government program.”[62] Mayeux writes that as late as 1956, a federal judge published an article “asserting that the ‘public defender system’ was essentially ‘totalitarian.’”[63] His critiques were not so fantastical. He presented a hypothetical “‘poverty-stricken Puerto Rican who does not speak English’ falsely accused of killing a government agent.”[64] Yet, he was represented by another government official, a public defender. The federal judge used this example to illustrate the inherent conflict of interest in the concept, exemplifying the legal community’s great discomfort.[65] Lawyers were ultimately wary of the government putting its thumb on the scale to favor one side of the adversarial process over the other.
Yet still another concern was, of course, funding. Public defenders would require public dollars. As if to counter the underlying indigent defense concerns raised by public defender advocates, volunteer organizations were introduced and institutionalized in the early 1920s and 1930s in New York, Boston, and Philadelphia.[66] Organizations like the Rockefeller Foundation, backed by multimillion-dollar corporations, were the best and most sought-after income sources during this era.[67] Such comforting support, though inconsistent and inadequate, made sure these volunteer organizations were quickly seen as an antidote to the indigent defendant problem, only without resorting to public funding.[68] Calls for government-funded defense were suffocated.[69] One of the strongest arguments for voluntary defenders was that government employees were synonymous with administrative waste and bureaucratic bloat. Volunteer defenders in contrast required less overhead, relying on unpaid or low-paid labor, even for permanent employees.[70] While government public defenders were initially imagined as having financial parity with prosecutors,[71] volunteer defense was seen as “a noble endeavor whose rewards were not primarily material.”[72]
Yet volunteer defenders did not escape criticism. Financial squeezes and abbreviated service models meant volunteer attorneys chose favored clients: those who were “redeemable,” with believable stories, and backgrounds and complexions similar to their own.[73] Over time, indigent criminal defense was seen less as charity and more as a fundamental right, largely because volunteer defenders could only serve as far as Rockefeller-like figures’ charity could sustain them.
Thus, in the wake of “mob-dominated” legal lynching trials in the Jim Crow South, civil rights lawyers pressured the Supreme Court to enhance constitutional protections in criminal proceedings.[74] This pressure culminated in Powell v. Alabama,[75] decided in 1932. After nine Black teenagers’ court-appointed lawyer took no steps to investigate the boys’ case (all he had done was meet with the boys an hour before trial),[76] the Court held nearly unanimously that counsel must not only be present but “effective.”[77] This decision set the stage for the Court to consider what was essential for a fair criminal trial.[78]
By 1938 it did so in Johnson v. Zerbst,[79] where the Supreme Court held that adequate defense counsel was required in federal criminal trials. Though Johnson’s holding did not yet apply to states—as the Sixth Amendment’s right to counsel was not yet incorporated[80]—it was the first time that the Court defined the right to counsel as requiring an attorney in criminal trials, regardless of income.[81] The next year, the American Bar Association (ABA) endorsed federal public defender legislation at a time when many elite lawyers were still skeptical of a public option.[82]
Though the Court and legal community continued to grapple with the newly founded right in subsequent decisions, it was clear that the tide was turning. By the 1960s, surviving the Great Depression and McCarthyism, the public defender model was no longer seen so much as a threat to the capitalist American fabric[83] but as an arbiter of independence, freedom, and capitalist principles––an about-face into a propaganda tool to demonstrate America’s superiority over Soviet communism.[84] The politics around the concept flipped to better serve the country’s ends. Major bar organizations were no longer hostile to public defense but saw it as essential to the criminal legal system.[85]
On the wings of the civil rights movement and groundwork laid by previous decisions, the Court decided the landmark case of Gideon v. Wainwright.[86] The Court held that the Sixth Amendment’s right to counsel was “among those protections so significant to ‘ordered liberty’”[87] that it chose to extend its Johnson precedent and incorporated the right to apply to the states.[88] Justice Black, writing for the Court, recognized the vast expenditures states and the federal government made “to establish machinery to try defendants accused of crime.”[89] It was in society’s essential interest to hire prosecutors to protect order, but it was an aberration to only allow the few defendants charged with crimes who could afford private attorneys to receive representation.[90] The nation’s procedural and substantive promises could not be realized “if the poor man charged with crime has to face his accusers without a lawyer to assist him.”[91] The Court joined the chorus of attorneys, organizers, and U.S. presidents who uplifted fairer criminal courts.[92]
Gideon and its progeny to this day are seen as a great triumph. Indeed, Gideon gave permission for the widespread establishment of public defender offices across the country. Over the sixty years since this decision, however, many flaws have come to light. For one, despite the guarantee of an attorney for criminal prosecutions regardless of whether the defendant is rich or poor, Justice Black in his majority opinion never mentioned public defenders, the presumptive constitutional conduit for Gideon’s promise.[93] Everyone knew the Court meant that public defenders would fulfill this role; by the time Gideon was decided, thirty-seven states had government-funded counsel in felony cases, and many provided counsel in misdemeanor cases.[94] The country was already moving in Gideon’s direction. But the Gideon court omitted public defenders largely due to politics. Gideon, according to Mayeux, “rhetorically scrubbed out the public side of the public defender equation and emphasized the defender side,” giving the government-employment position more time to shed its socialist skin.[95] Not mentioning public defenders gave local courts more leeway to assign public as well as private counsel to its indigent defendants while the role experienced its growing pains. Whatever the case, the Court’s rhetoric showed a lack of full-throated support for this unique institution. Bar associations like the ABA nevertheless released standards that envisioned public defenders as the nation’s “primary providers” of criminal defense services.[96]
Since public defenders were not mentioned in Gideon, it is also hardly possible to imagine the Court setting any concrete guidelines for how states should develop and maintain public defender offices. And it did not. Though newly formed public defender offices across the country received some local structure, and entities like the Ford Foundation gave millions to “establish, expand, and assist public defenders nationwide,” the Supreme Court’s aimlessness sowed discord and incongruity.[97] There was no clear direction for how the right to effective counsel would and should be administered.[98] Despite Gideon’s pronouncement, it offered “no meaningful roadmap” to implement organized and well-funded public defender offices across the country, leaving out-of-sync states to fill the role.[99]
Understanding Gideon as a product of the early Cold War, shaped by the politics of anticommunism and cultural competition for the world’s support, helps to illuminate why Gideon has underperformed in its promise to usher in an era of constitutional prominence. Gideon was colored by politics and racism: McCarthyism in the 1950s[100] and Jim Crow in the 1960s. In international media, the Soviet Union heavily criticized the United States for its racist policies; Gideon, in promising greater fairness for criminal defendants, aimed to rehabilitate the country’s image.[101] Gideon was not, at its core, colored by a genuine concern for the poor. It was a propaganda tool, like the public defender itself, to develop the American capitalist identity as communism’s and the Soviet Union’s superior.[102] This helps to explain indigent defense spending through modernity. Once the Cold War was won, there was no need to continue marketing the public defender to the world.
Because of Gideon’s barrenness, crisis ensued almost instantly in states where public defenders had already become a mainstay. Mayeux records how Gideon prompted an “ever increasing demand for services” due to rising criminal caseloads.[103] State courts soon became overrun with reversed convictions, and law enforcement became inundated.[104] For example, Massachusetts’s legislature, at first expressing intent to establish a public defender agency, “remained reluctant to fund it”[105] even after the Gideon decision. Before Gideon, Massachusetts was a national leader in volunteer defense and quickly became a national leader in public defense.[106] But the Bay State’s public defenders traversed treacherous waters. Mayeux describes a statewide study conducted the year after the Gideon decision that estimated that 60 percent of defendants facing “‘serious charge[s]’ in the [Massachusetts’s] district courts lacked counsel.”[107] From 1958 to 1968, Massachusetts’s indigent defenders went from handling 1,120 cases to more than eighteen thousand.[108] By 1972, they were handling forty-two thousand cases.[109] Even though the ABA’s professional standards recommended that public defenders earn salaries on par with law firm associates or prosecutors, in 1964 Massachusetts’s public defenders earned the lowest salary of any full-time attorney in the state.[110] Mirroring the volunteer defender’s low-overhead model, public defenders had a “revolving cast”[111] of law school graduates who were less resistant to a lower pay scale. And in Massachusetts’s trial courts, judges scoffed at the newly formed public defenders as “unwelcome meddlers”[112] that disrupted traditional practice. Yet even as Massachusetts struggled, Mayeux points out that it was still a national leader in the 1960s for its public defender support and model.[113]
The rest of the nation struggled exceedingly. Complaints about “assembly-line justice” permeated the national ether as more people were charged and tried than the system could handle.[114] During the Lyndon B. Johnson administration, the President’s Commission on Law Enforcement found “overwhelming evidence of institutional shortcomings [in the criminal legal system] in almost every part of the United States.”[115] Lower courts were characterized by “cramped and noisy courtrooms, undignified and perfunctory procedures, and badly trained personnel overwhelmed by enormous caseloads.”[116] The next year, the National Advisory Commission on Civil Disorders, or the Kerner Commission, cited “structural deficiencies in criminal court systems” across the country that weakened cities’ capacities to respond to large-scale disorder.[117] From this era the plea-deal public defender was born.[118] Public defenders were widespread, as Gideon and its progeny[119] required; they just did not have the numbers, resources, esteem, or pay necessary to fulfill their constitutional directive.
President Lyndon B. Johnson’s 1967 Commission on Law Enforcement predicted that “the shortage of criminal lawyers, which is already severe, is likely to become more acute in the immediate future.”[120] The Commission was correct. In a first-of-its-kind empirical survey conducted in 1973 by the National Legal Aid and Defender Association (NLADA), ten years after Gideon, the conclusion was that “few jurisdictions even approach[ed] . . . national standards in their treatment of the indigent accused,” and many failed to “even meet specific constitutional directives of the Supreme Court.”[121]
In the 1980s, prompted by financial crisis and the War on Drugs, what was once fiscal neglect turned into deep affirmative cuts. The average budget for indigent defense cases in 1986 “hovered below $250—barely enough to cover the cost of blood tests, let alone expert witnesses, legal research, or attorney fees.”[122] Tough-on-crime policies from the 1980s spilled into the 1990s with escalating crime rates that led to higher imprisonment rates for the poor and for people of color.[123] The thirty years preceding the turn of the millennium saw indigent public defenders “increasingly being asked to do more with fewer resources while simultaneously being placed under the pressure of higher stakes for their clients.”[124]
By the early 2000s, the ABA reported that average defendant detention was “up to 11 months without seeing a lawyer, and [there were] averages of 501 days for a case to reach disposition of any kind.”[125] The federal government, despite Congress’s passage of the Speedy Trial Act of 1974[126] ideated to set speedy trial time limits, has not escaped attack.[127] A 2013 federal government shutdown “exacerbated” federal defender challenges; “in [fiscal year] 2013, the [Federal Defender’s Office] took a $52-million funding cut, more than 9% of its budget. It lost over 200 employees and operated at 90% of adequate staffing levels.”[128]
When facing funding pressures, states have historically put criminal defense on the chopping block. Following the 2008 Financial Crisis, states were forced to cut billions from their budgets. This deepened already chronic public defense budget cuts. Maryland had to reduce its budget by $432 million, cutting $400,000 in public defender staff salaries.[129] In Minnesota, the legislature cut the Board of Public Defense’s 2009 budget by $4 million, forcing layoffs of 13 percent of the public defender staff (twenty-three public defenders).[130] Similarly, due to budget cuts, the Georgia Public Defender Standards Council in 2007 owed hundreds of thousands of dollars to public defenders (because public defenders were asked to work without pay) and was forced to lay off forty-one employees.[131] Forty-one states in 2009 faced mid-year budget shortfalls,[132] twenty-two of which directly funded their state’s indigent criminal defense.[133]
As the crisis extended its rotting roots, the system became a more “sophisticated apparatus” of processing defendants for a guilty plea or sentence.[134] Professionalized, government-provided counsel, initially imagined to expand the right to counsel, had an ironic effect: “[A]s things g[o]t better they appear[ed] to get worse.”[135]
The history of indigent criminal defense is clear, though distressing. Gideon prompted states to address a new and unstructured constitutional mandate. Though welcomed in theory both by its advocates and its beneficiaries, early complications repeatedly foreshadowed struggle. Inadequate guidance left states to nominally meet their constitutional directives while not providing necessary support structures to ensure successful public defenders. Indeed, a patchwork formed, but it was marred by many holes. Funding issues plagued even the most well-intentioned states and created insurmountable deficiencies for others. Politics and recessions dug the indigent criminal defense hole deeper. There was never a “golden age” for public criminal defense. It has always struggled despite the Sixth Amendment’s words on the Constitution’s parchment. The resulting landscape leaves indigent criminal defense in an all-too-similar “shyster” state as before the public defender was imagined. Public defenders may no longer prey on wary defendants in jails partly because they no longer have the time to meet potential clients before trial. Though they are not volunteers, they remain cash strapped like their volunteer counterparts. Public defenders for too long have been a source of disillusion and shame for both the client and the public defender themselves.[136] Thus, systemic breakdown has been the norm, not a recently discovered phenomenon.
II. Overview of Federal Law: Constitutional Crisis by Design
With the foundation, history, and reality of public defense described, making systemic breakdown not only clear but pervasive, Part II will focus on the key Supreme Court decisions that have exacerbated and ignored this systemic breakdown. The point of this case litany is to show how law, not just politics, has shaped systemic breakdown. I start with discussing Barker v. Wingo to introduce the speedy trial right framework, move to Polk County v. Dodson for context on how courts categorize public defenders despite their government employment, and then conclude with Vermont v. Brillon. Brillon connects the inadequacies of the Barker factors with the Dodson categorization to shift blame upon defendants for unreasonable delay. Even with Brillon’s caveat intending a path of respite for defendants, the Court left that path hidden in the brush, muddy and unpaved.
As described previously, Gideon’s promise was unkept despite its aspirations. Gideon aspired to formulate the Sixth Amendment right to counsel into a more equitable and accessible right—one that not only existed on paper but also whose practical consequences helped both the rich and poor. But like other Warren Court decisions, it provided a mandate with no clear direction or apparatus to fulfill it.[137] Subsequent Court decisions sought to clarify and shape the criminal justice system following the Gideon earthquake. But after Gideon, there was an influx of criminal prosecutions without a corresponding increase in funding,[138] bringing the criminal legal system to the brink. With this influx, the increase in public defenders that Gideon permitted could not keep up. Atrocious and abundant delays resulted, creating room for defendants to argue that the system had failed them. Enter the Sixth Amendment. As the Sixth Amendment is one of the key constitutional amendments ensuring one’s rights in the face of government prosecution, its language protecting a defendant’s speedy trial right was ushered center stage.
A. Analyzing the Speedy Trial Right: Barker v. Wingo
The Court’s seminal attempt to rein in inordinate criminal legal system delays was Barker v. Wingo[139] in 1972, which set an extremely high bar for finding that a defendant’s speedy trial right was violated. Fourteen years earlier, Willie Barker and Silas Manning were indicted for beating an elderly couple to death with an iron tire tool.[140] In an attempt to secure Barker’s conviction, the Kentucky Commonwealth brought Manning to trial first.[141] However, the Commonwealth did not anticipate the numerous obstacles it would face in securing Manning’s conviction. Over the span of nearly five years, six trials were held. The first ended with a hung jury, the second ended with a conviction and a reversal, and the third ended due to another conviction and reversal.[142] The fourth resulted in another hung jury, and it was not until the fifth and sixth trials that Manning was convicted: the fifth trial for the murder of one victim and the sixth trial for the murder of the other.[143]
The trial court, meanwhile, granted sixteen of the prosecution’s continuances for Barker’s trial over those five years and six trials.[144] After ten months spent in jail, Barker posted bond until his own trial date.[145] After the prosecution’s eleventh continuance, Barker intervened, filing a motion to dismiss his indictment. It was denied, and instead a twelfth continuance was granted.[146] In February 1962, four years after his initial indictment, Barker objected again to an additional continuance. His objection was unsuccessful, as the court sought to afford the prosecution time to wait out the chief investigating officer’s illness.[147] The March 19 trial date was moved again, then again, then once more, to October 9, 1963, due to the officer’s continued inability to testify.[148] On his trial date, Barker again moved to dismiss his case, this time specifying that his “right to a speedy trial had been violated.”[149] It was again denied. Barker was convicted and given a life sentence.[150]
On certiorari, the Supreme Court began its analysis by categorizing the speedy trial right as “generically different from any of the other rights enshrined in the Constitution for the protection of the accused.”[151] It gave a few reasons for this assertion. First, not only does the right encapsulate a concern for the accused, but it also ensures a speedy trial that exists “separate from, and at times in opposition to, the interests of the accused.”[152] Delayed cases create backlogs; backlogged courts create overcrowded jails[153] that thus create additional taxpayer costs and systemic leverage for prosecutors and defendants to manipulate. Overcrowded jails maintain deplorable conditions that have “a destructive effect on human character and make[] the rehabilitation of the individual offender much more difficult.”[154] These realities make speedy trials constitutionally and financially imperative for society.
The Court further noted that delay can be a tool in the defendant’s belt as well. Witnesses become unavailable and memories fade. As the quality of a witness’s memory deteriorates, the prosecution’s case is weakened, sometimes fatally.[155] A balance must therefore be struck between the realities of trial and the defendant’s litigation strategy.
Finally, according to the Court, determining a violation of the speedy trial right is necessarily relative. In a system that strives to be both swift and deliberate, both quick in its justice but calculated and careful in its decisions, it cannot be said how long is too long. Barker demonstrated how the judicial system’s balancing act is messy. The prosecution made several attempts to try Manning so that it could strengthen its case against Barker, and mistakes, hung juries, and sick witnesses plagued their path forward. According to the Court, not all delays should necessitate a Sixth Amendment violation.[156]
From these considerations the Court devised four factors to analyze whether a defendant’s speedy trial right had been violated, factors that influence analyses today. None of these factors have any “talismanic qualities,”[157] meaning none are dispositive and, together, are not the end-all-be-all of the Court’s analysis. First and most obvious is the length of delay, which also operates as a triggering mechanism. The Court recognized that whether this trigger had been pulled is dependent on a case’s circumstances.[158] It rejected any bright-line rule where after a preconceived amount of time, the factor is triggered.[159]
The next factor is the reason for delay.[160] The prosecutor’s or trial court’s deliberate delays will have different implications on a defendant’s speedy trial right than a defendant’s deliberate delays. So too will delays created by “neutral” reasons such as an overcrowded court docket.[161] Deliberate delays will be weighed heavily against their cause, whether that be the prosecutor, the trial judge, or the defendant. “Neutral” reasons will carry less weight but nevertheless will weigh against the government since it is the government’s burden to bring the case forward.[162] Finally, valid reasons such as a sick witness or an emergency will typically justify appropriate delay.
The third factor is the defendant’s responsibility to assert the speedy trial right.[163] The Court reasoned that whether and how a defendant asserts their right is relevant to whether it is deprived.[164] Whether the right is expressly or implicitly asserted, and when, helps courts determine if the defendant has been wronged.[165]
The fourth and final factor is prejudice to the defendant, which should be assessed in light of the defendant’s interests.[166] The three interests the Court identified were “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.”[167] As the Court noted, “the time spent in jail is simply dead time.”[168] Once locked up, a defendant cannot work, take their kids to school, or accomplish tasks that fulfill everyday life. Extended amounts of time spent in jail waiting for trial upend a defendant’s life: jobs are lost, relationships are strained, and loved ones move on.
The Court emphasized the third interest, impairment of the defense, most.[169] It reasoned that in circumstances where a defendant is defending themselves against the state’s accusations with undue delay, or if witnesses die, disappear, or simply cannot recall memories too far into the past, such circumstances skew “the fairness of the entire system”[170] and impair a defendant’s attempt to attain their freedom.
Additionally, one of the fundamental tenets of the American criminal legal system is that one is presumed innocent until proven guilty. If a defendant is subjected to oppressive carceral conditions before their conviction, then this tenet is turned on its head. The Court implicitly asserts this tenet when it recognized that simply being accused subjects a person to “a cloud of anxiety, suspicion, and often hostility.”[171]
The Court put these four factors—length of delay, reason for delay, assertion of the right, and prejudice to the defendant—in context. None, the Court emphasized, is necessary nor sufficient to find a speedy trial right violation.[172] Other circumstances may be relevant depending on the nature and subject of the case. With this understanding, the Court took on the task of determining whether Barker’s Sixth Amendment right was violated. It held that it was not.[173]
Barker’s five-year wait was “extraordinary.”[174] The Court made clear that the length of delay was presumptively prejudicial, with only seven months attributed to a worthy excuse, the ex-sheriff’s illness. It reasoned that most of the four years were otherwise attributable to the Commonwealth’s failure to try Manning in a timely manner.[175] Length of and reason for delay therefore weighed against the Kentucky Commonwealth. But in analyzing prejudice, though Barker spent ten months in jail and nearly five years under a cloud of anxiety, the Court asserted that prejudice was minimal. None of Barker’s witnesses had died, and there were only two minor lapses in memory at trial, which were insignificant to the outcome. The Court also reasoned that Barker did not want a speedy trial, despite moving for one three times.[176] The Court pointed to the fact that Barker did not move for a dismissal until the eleventh continuance was granted, three years into the trial. Barker’s counsel also conceded at oral argument that Barker gambled on Manning’s acquittal,[177] implying that he thought the delay was ultimately to his benefit. Weighing these factors, the Court deemed Barker’s due process right to a speedy trial had not been violated.
Five years must not have been extraordinary enough then.[178] Even after separating out the several-month delay caused by the investigating officer being sick, there were more than four years, more than 1,460 days, where Barker, presumed innocent, faced the anxiety of trial for murder.[179] The Court’s analysis focused on prejudice against Barker’s ability to mount a viable defense, which the Court viewed as inconsequential. But the Court discounted the other forms of prejudice it had just crystallized like the anxiety of being a murder suspect for four years. Barker had awaited trial for double homicide. For the nearly four years he was out of jail, he certainly faced the “cloud of anxiety” the Court had identified as an important prejudice. The Court suspected as much.[180] The stain of an alleged double murder likely put the Commonwealth at a razor’s edge while Barker walked the streets. But despite acknowledging this in its opinion, the Court disregarded the sentiment in its final analysis.
The prosecution’s deliberateness (read, gamesmanship) with Barker’s trial was also de-elevated, and Barker’s supposed gamble was elevated. The Court criticized Barker’s defense strategy, calling it an admission Barker did not actually want a speedy trial since he was gambling on Manning’s acquittal to help his own defense.[181] But it was not Barker’s nor his counsel’s responsibility to bring Barker’s case forward. It was the prosecution’s.[182] If Barker or his counsel gambled, they gambled because the prosecution’s trial strategy forced Barker to await which hand the prosecution would deal while the prosecution made a gamble of their own on Manning, Barker’s codefendant. At the government’s blackjack table, Barker was against the dealer; the “house” controlled his fate. Barker was not in control of the order in which the government chose its defendants to prosecute. He was not in control over how long the government would take to try Manning. The little control he did have was in the motions he submitted to dismiss his case, all of which were denied. The Court therefore mistook Barker’s lack of agency for a lack of desire.
Barker v. Wingo reveals weaknesses in the Court’s test to determine whether a speedy trial right violation has occurred. The Court’s analysis did not follow its established rule. It announced three worrisome forms of prejudice but declared that Barker did not experience “serious prejudice”[183] when it evaluated only one. A better balance should have been struck, one where the increasing passage of time necessitates discussion and weight upon the other two forms of prejudice. Congress agreed. Congress felt the decision was lackluster and lacked teeth, responding with the 1974 Speedy Trial Act as an attempt to better protect the Act’s namesake.[184]
Acknowledging that Barker indeed experienced some violation, the Court put his remedy just out of reach. The result is a high bar and great suffering before a criminal defendant can argue a Sixth Amendment speedy trial right violation. Barker’s delay was not “extraordinary” enough.[185] This will be a stubborn pattern in the Court’s speedy trial right analysis.
B. Categorizing Public Defenders as Private Agents, Not State Actors: Polk County v. Dodson
As a result of the political rhetoric, financial cash-strapping, and War on Drugs that engulfed the 1980s, public defenders were overrun and their service quality challenged, giving rise to whether an inadequate public defender could be charged with violating a defendant’s constitutional rights under color of state law.[186] In Polk County v. Dodson,[187] the Court not only answered this question but, importantly and insidiously, categorized public defenders such that their delays are eventually attributed to the defendant, not the government.
The facts are so. Defendant Richard Dodson filed a pro se[188] complaint in federal district court under 42 U.S.C. § 1983[189] against his public defender, Martha Shepard, for failure to represent him adequately.[190] He also sued Polk County, its Board of Supervisors, and its Offender Advocate’s Office, Shepard’s employers, for this failure.[191] Shepard specifically moved to withdraw as counsel in Dodson’s underlying case on the grounds that Dodson’s claims were wholly frivolous.[192] In his complaint, Dodson alleged that Shepard’s withdrawal deprived him of his right to counsel and subjected him to cruel and unusual punishment, relying on Shepard’s Polk County employment to establish that Shepard acted under color of state law.[193] He alleged that Iowa’s Polk County Offender Advocate’s Office and Board of Supervisors established procedures that Shepard was bound to follow due to her employment. The district court dismissed all of Dodson’s claims, holding that Shepard’s actions did not occur under color of state law.
The Court of Appeals for the Eighth Circuit reversed, finding dispositive that Offender Advocates are county employees. “Public defenders receive their power not because they are selected by their clients, but because they are employed by the County to represent a certain class of clients, who likely have little or no choice in selecting the lawyer who will defend them.”[194] From that state power came responsibility and accountability. Thus, the Eighth Circuit held public defenders were not immune from § 1983 liability.[195]
The Supreme Court disagreed with the Eighth Circuit and reversed. Shepard’s obligations as a public defender, the Court declared, did not clothe her “with the authority of state law. . . .”[196] “Except for the source of payment,”[197] a public defender’s relationship to their client is identical to that existing between any other lawyer and client. To come to this conclusion, the Court compared a public defender to private counsel. Like a private attorney, public defenders “characteristically oppose[]” the state’s representatives.[198] They “enter ‘not guilty’ pleas, move to suppress the State’s evidence, object to evidence at trial, cross-examine State’s witnesses, and make closing arguments on behalf of defendants.”[199] The adversarial position that the defender takes means that the defender advances “the undivided interests” of his client, a private function for which “state office and authority are not needed.”[200] Privately retained counsel are also not state actors by virtue of being officers of the court[201] and neither are public defenders, who hold an adversarial role with the state.[202]
The Court then downplayed the distinctions between public defenders and private attorneys by investigating the public defender’s employer. The state may determine the quality of a public defender’s library or caseload size, the Court reasoned, but a public defender is not the servant of “an administrative superior.”[203] They are held to the same professional standards as private attorneys and oppose the state in key ways.[204]
States, cities, and counties are also constitutionally obligated to respect the professional independence of the public defender.[205] This, the Court noted, was one of Gideon’s promises. Because Gideon entitled defendants to the “guiding hand of counsel” at every step in the proceedings against them, implicit in this guiding hand was freedom from state control.[206] Therefore, the Court refused to contrarily assume, without proof, that a public defender, by virtue of their state employment, was corrupted and ineffective. Based solely on Gideon’s existence, rather than the Court’s enforcement of it, the Court declared that lawyers could not “permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment.”[207] The Court declared that “[t]here can be no fair trial unless the accused received the services of an effective and independent advocate” who is not a state actor and who is not partial to the government’s demands.[208] The Court thus assumed that Dodson’s lawyer was an effective and impartial advocate just because Gideon existed, without any analysis of or inquiry into the reality.[209]
But as Justice Blackmun noted in his dissent, a public defender’s effectiveness is dependent on how the state funds and supports the defender. The fair trial ideal is compromised when that defender is underfunded. Not only did the majority deviate from precedent,[210] but Justice Blackmun highlighted the majority’s blind spots in distinguishing the public defender from a private attorney. The county’s control over the size of, and funding for, the public defender’s office, as well as over the number of potential clients, effectively dictates the size of an individual attorney’s caseload and substantially influences the amount of time the attorney can devote to each case. The public defender’s discretion in handling individual cases and ability to provide effective assistance, then, “is circumscribed to an extent not experienced by privately retained attorneys.”[211] In other words, public defenders are subject to the state’s influence at both ends; their caseload is dictated by the state’s desire to prosecute, but also, the state determines public defenders’ capabilities and capacity to meet demand and defend those who are prosecuted. The state’s overt influence on public defenders makes them different from private counsel, and they should be treated differently when the circumstances demand it.
The Dodson decision came with many consequences. First, the Court showed its willingness to see only what it wanted to see and justified its decision by hiding behind Gideon. Because Gideon enshrined “professional independence” from the state, states could not possibly attempt to control public defenders “inconsistent with the principles on which Gideon rests.”[212] The Court’s imagination was far removed from reality.
Dodson foreclosed the possibility of § 1983 relief for indigent defendants facing ineffective counsel. But not only that. It also created permission structures for states and counties to underfund public defenders. No longer faced with § 1983 liability from the shoddy work of their underpaid public defender employees, states and counties were emboldened to hamstring their municipal budgets and force tough decisions upon county supervisors and city councils, leaving indigent defense as one of the last priorities. Rather than pivoting toward a public defense model that recognized the critical distinction between a cash-strapped public defender and a private criminal attorney who can pick and choose their clients, the Court retained a status quo subjecting public defenders to “the same duties and obligations to the court and to their clients as an attorney in private practice”[213] despite their obvious differences.
The Court attempted to clean up its mess three years later in the well-known case, Strickland v. Washington,[214] and its later progeny. Faced with a death penalty-bound criminal defendant’s claim of bad lawyering against an appointed criminal defense attorney, the Court had to devise a universal standard of accountability to prop up its speedy trial regime. The Court created a standard for evaluating ineffective assistance of counsel (IAC) and a test for determining such ineffectiveness. Recognizing that the right to effective counsel is critical to the adversarial system,[215] the Court placed the burden on the defendant to (1) show that the counsel’s performance was deficient and (2) show that the deficient performance prejudiced the defense.
IAC claims are frequent company to speedy trial right violation claims.[216] Much scholarship has been devoted to theorizing, critiquing, and uplifting the IAC test as a defendant’s first and best option to counter inadequate public defenders. But Strickland’s IAC test is ill-fitting for the pretrial problems this Note highlights.[217]
Many scholars critique the IAC claim on the following grounds. First, IAC claims present too high a bar to be a true remedy for defendants. The test’s first prong is based on the actions of a “reasonably competent attorney” acting “reasonably.”[218] This standard is both hard to define and incredibly malleable. It gives a defendant no guidance on how to bring claims against their own former counsel, often while serving their sentence. Indigent criminal claimants are often burdened with poverty, prison, and pro se status when trying to determine what a “reasonable” attorney would have done in their situation. It makes for a herculean task to bring an IAC claim without material definition. The Strickland test further gives courts wide discretion to determine whether a defendant has met this burden.[219] This lack of guidance on such an important constitutional right creates fertile ground for lawyers to protect themselves rather than the defendants they are obligated to adequately represent.
Second, underfunded, overworked public defenders make subpar records for defendants to reference on appeal as evidence of incompetence. IAC claims address only “errors of commission, ignoring the reality that ineffectiveness is more likely to result in errors of omission.”[220] Trial records and hearing transcripts are harder to use to rectify what was not said. Thus, defendants risk missing their best opportunity to rectify their attorney’s poor performance if their only remedy is to wait until after trial, a wait that can take many years when a speedy trial right violation is involved. The issues that systemic breakdown allegations address are those where the public defender, after a temporal threshold, is presumptively ineffective; a defendant should not wait years after their conviction to bring their claims.[221]
Still, even if the Court had it right in Strickland and its progeny and devised a standard that could adequately nab the bad lawyers that did not do their jobs, it missed the true problem behind many IAC claims.[222] Though some of these claims were rooted in individual attorney incompetence, the true problem was and has been systemic.[223] The system’s inadequacy could not be remedied by going after the bad apples. The absent attorney may not have been absent because they were a bad attorney; maybe they had a mountain of other cases that they were ethically obligated to attend to and, despite reasonable or even remarkable effort, one slipped through the cracks.[224] If it were going to devise a standard that addressed many of the problems seen under the IAC banner, the Court should have started with the premise that inadequacy is a problem core to the public defender system, leading to much individual incompetence.[225] Scholars, organizers, and defendants must move past the IAC claim and further develop the systemic breakdown argument.
C. Defendants Are to Blame for Public Defender Delay. But a Silver Lining? Vermont v. Brillon Proffers the “Systemic Breakdown” Caveat.
Barker and Dodson created the foundation for the Court’s doctrinal entrenchment in the 2009 case Vermont v. Brillon.[226] Brillon’s intricate factual record demonstrates the extent to which public defenders struggle to provide adequate counsel, violating the defendant’s speedy trial right. The Court found Brillon’s counsels’ multi-year delay insufficient to show his speedy trial right was violated, nor was it conclusive, according to the Court, of a systemic problem.
Michael Brillon was arrested on felony domestic assault and habitual offender charges in July 2001 and faced a potential life sentence.[227] Attorney Richard Ammons from the Bennington County Public Defender’s office was assigned as his first counsel. In February 2002, Ammons moved for a continuance citing his heavy workload and need for further investigation. The state denied it. Brillon then fired Ammons. Three months later, Brillon filed a motion to fire another public defender, Gerard Altieri, as his counsel for failure to file motions, “virtually no communication whatsoever,” and his lack of diligence “because of heavy caseload.”[228] Altieri denied these allegations, insisting he had time to prepare, but later in the hearing moved to withdraw himself because Brillon had threatened his life during a recess.[229] The trial court opposed Brillon’s motion but granted Altieri’s.
That same day, the court appointed Paul Donaldson from Vermont’s State Defender General’s Office who would go on to also request additional time to conduct discovery “in light of his caseload.”[230] But in November 2002, after six months, Donaldson revealed that he tried back in June to get Brillon’s case reassigned because his State Defender General contract had expired.[231] The trial court “released Donaldson from the case ‘[w]ithout making any findings regarding the adequacy of [Donaldson]’s representation.’”[232]
Brillon was without counsel for two months until his fifth counsel, David Sleigh, was assigned in January 2003.[233] Sleigh sought extensions of various discovery deadlines because he was previously out of town. Then in April, Sleigh withdrew from the case due to his own contract modifications[234] with the Defender General. Brillon was without counsel for another four months. In June 2003, the Defender General’s office notified the court that it had received necessary funding from the Vermont legislature and that it would hire a new special felony unit defender for Brillon. This defender was Kathleen Moore. In February 2004, Moore on Brillon’s behalf filed a motion to dismiss for lack of a speedy trial, which the court denied. The case went to trial on June 14, 2004, three years after Brillon was arrested, in which he was found guilty and sentenced to twelve to twenty years in prison. The trial court denied Brillon’s post-trial motion to dismiss for lack of a speedy trial, concluding that delay was “in large part the result of [Brillon’s] own actions” and that Brillon had “failed to demonstrate prejudice as a result of the trial delay.”[235]
On appeal, the Vermont Supreme Court reversed, holding 3-2 that the trial court violated Brillon’s Sixth Amendment right to a speedy trial. Citing the Barker test, the Vermont Supreme Court found that all four factors—length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant—weighed against the state of Vermont. Of utmost importance, Vermont’s highest court held that much of the delay attributed to the state was “caused, for the most part, by the failure of several of the defendant’s assigned counsel, over an inordinate amount of time, to move his case forward.”[236]
For the U.S. Supreme Court, the primary issue was whether Brillon or Vermont was the reason for the lion’s share of delay in his trial. Writing for the majority, Justice Ginsburg found that despite the delay in Brillon’s case and his repeated complaints about his counsel’s inadequacy, it was mostly his fault that his case was delayed.[237]
Dodson was pivotal to this decision. According to the Court, all six of Brillon’s counsel acted on behalf of Brillon, not the state. The Court cited Dodson for this assertion, reasoning that defenders are agents of their defendants and “‘[e]xcept for the source of payment,’ the relationship between a defendant and their public defender is ‘identical to that existing between any other lawyer and client.’”[238] Therefore, most of the blame attributed to the state by the Vermont Supreme Court should have been attributed to Brillon, as if his counsel were private attorneys.
Any other decision, according to Justice Ginsburg, would encourage public counsel to delay proceedings by seeking unreasonable continuances, hoping to obtain a dismissal on speedy trial grounds.[239] Public defenders may cause a delay for their client’s benefit and face no repercussions because the delay would be attributed to the state rather than themselves or their client.[240] Trial courts could respond by treating public defenders’ continuance requests with greater skepticism. These same considerations would not be carried for privately retained counsel. Despite trial courts having the discretion to grant or deny unreasonable continuances, the Court sought to avoid treating public defenders differently from private counsel.
The Vermont Supreme Court also failed to appropriately take into consideration Brillon’s personal role, according to its federal counterpart.[241] His aggressiveness with Altieri, threats, and further impediments made it difficult for the Defender General to find replacement counsel. A defendant’s deliberate attempt to disrupt proceedings should weigh heavily against the defendant.[242] Absent Brillon’s efforts, the Court relayed, there would have been no speedy trial issue. Because the Barker factors have no talismanic qualities and are inexhaustive, the Vermont Supreme Court should have factored in Brillon’s behavior.
But Justice Ginsburg offered a caveat: “Delay resulting from a systemic ‘breakdown in the public defender system’” could be charged to the state.[243] This subinquiry can tip the scales for just one of the Barker factors: reason for delay. But without defining systemic breakdown, and after offering this amendment to the Barker test for the first time, the Court concluded that the Vermont Supreme Court was still wrong. “[N]othing in the record suggest[ed]” any institutional problems caused delay in Brillon’s case.[244]
There are several issues with the Court’s majority opinion, which featured case analysis shorter than its rendition of the facts. Most immediate is the Court’s failure to define “systemic breakdown,” while declaring that the Vermont Supreme Court and lower state courts had not discovered it.[245] This case featured a revolving door of public defenders, multiple continuances, an underfunded public defender office, and admittedly heavy workloads. Every one of Brillon’s attorneys, except the last, either faced a heavy caseload or withdrew. Ammons, Brillon’s first public defender, cited a heavy workload. Brillon accused his third defender, Altieri, of the same. Donaldson was not only accused of failing to work on Brillon’s case, but also seemingly admitted as much, citing the end of his Defender General contract. Contract modifications also took out Sleigh, Brillon’s fifth counsel. It was not until Moore, Brillon’s sixth attorney, that Brillon’s case began to move. But this was only after the Defender General received “funding from the legislature” and hired Moore as a new special felony-unit defender for Brillon, and the case had lapsed for three years.[246] The Court made no attempt at tying these facts together to determine whether these events were systemic or, at least, attributable to the state as the bringer of cases and funder of defenders.
The Court was also concerned that public defense counsel and private defense counsel would be treated differently, creating distortions in their respective practices.[247] But it is unclear whether Justice Ginsburg’s theoretical assertion, not backed by empirical observations or case precedent, would be a practical reality. Justice Ginsburg hypothesized the increased possibility of public defender gamesmanship if they were afforded an out—their delay would be the state’s fault, while private counsel’s delay would remain the defendant’s fault. A lower court’s skepticism would compound the discrepancy, as they would feel the need to cauterize public defenders’ continuance requests by granting fewer.
The Court presumed that public defenders would be inclined to unnecessarily delay their client’s case if given the choice. But even if placed in circumstances where a defendant would be inclined to delay their case, and the public defender agreed, there are multiple checks on this decision. One is the prosecutor. Because it is the state’s responsibility to move a case forward, it is unlikely that a public defender can rely on their adversary’s acquiescence forever. Prosecutors do not want to lose witnesses, evidence, or memories. If a prosecutor wants to win their case and avoid dismissal on Sixth Amendment grounds, they will be incentivized to contest a public defender’s frivolous continuances.
Even if defendants sometimes prefer to delay their case, a public defender will not be obligated to do so. Public defenders are additionally bound by their ethical obligation to serve the Constitution.[248] Defendants are indeed masters of the ship when it comes to their own defense, but defense counsels’ domain is the strategic decisions to obtain their clients’ ultimate objectives. “Trial management is the lawyer’s province[.]”[249] As Barker demonstrated, delay is a gamble. It is only won if a confluence of factors presents itself, and even then, the defendant must remain in custody or under guilt’s auspices while out on bail or bond. Even if delay were sought, there are more reasons to avoid delay than to welcome it,[250] all of which the public defender should explain to their client.
The Court not only expressed theoretical concerns but also construed the potential solution as an additional problem. It is a judge who determines a continuance’s merits, whether a prosecutor, private criminal attorney, or public defender requests it. Judges are the arbiters of a reasonable continuance, and parties must always make the case for it. Judges do not look at prosecutors more skeptically because they are public employees, nor do they look at private attorneys more skeptically because they are the defendant’s agents. Trial judges have great discretion to decide whether to grant a continuance according to many states’ Rules of Court, even though continuances are frowned upon.[251] In California, for example, continuances are only granted upon a “showing of good cause.”[252] Examples include “(1) [t]he unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) [t]he unavailability of a party because of death, illness, or other excusable circumstances; (3) [t]he unavailability of trial counsel because of death, illness, or other excusable circumstances; [and] (4) [t]he substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice.”[253]
Judges in an alternate Brillon universe where the Brillon Court found public defenders to be state actors would have an additional arrow in their quiver. They already have the choice whether to grant a continuance when a public defender, in the scenario that they are unable to show good reason (i.e., good cause), requests one. The Rules of Court are a guide, yet their proper use and enforcement would relieve Justice Ginsburg’s concerns of judicial backlash. The additional arrow would be that judges could attribute some of these causes for delay, like caseload and resource issues, to the government. Nothing would change about the good cause threshold that public defenders would need to meet to be granted a continuance if public defenders were state actors. Thus, there is no worrisome public-private distinction.
The status quo that Justice Ginsburg maintained, keeping public defenders as quasi-private agents rather than state actors, jeopardizes the constitutional rights of indigent defendants because public defenders who cannot adequately represent their clients will face less accountability for their actions. The greater tragedy is that without recognizing Gideon’s flaws, the Court muzzled under-resourced indigent criminal defense to a status of inevitability. This status quo, minimized by the Court, tears at the fabric and aspirations of the Constitution.
Attention must be returned to the Polk County v. Dodson problem on which the Brillon Court relied. Much of its attempted-yet-failed meshing of public and private counsel rested on the fallacy that they were essentially the same “[e]xcept for the source of payment . . . .”[254] But as Justice Blackmun made clear in his dissent in Dodson, the source of payment creates a world of difference.[255] When continuances become an overworked and underpaid public defender’s saving grace from coming to court unprepared, they and their indigent defendants are forced to choose between their right to a speedy trial and their right to competent counsel—between the ultimate outcome of guilt or its de facto outcome. A defendant too poor to pay for an attorney who can curate that attorney’s workload must settle for an attorney who, in contrast, is too often unable or unwilling to meet with the defendant before the first pretrial hearing, or oftentimes even before trial.[256] The cause of the delay is the “source of payment,” contrary to the Supreme Court’s precedent, a reality that has become so clear throughout the country for decades.[257] To treat public defenders and private attorneys as the same, so that a strawman can be constructed to dissuade courts from vindicating a criminal defendant’s rights, is inappropriate. The Court shuttered behind Dodson’s fallacy and made public defenders, their offices, and the governments funding them even less accountable to the Constitution despite Gideon.[258]
One issue that the Vermont Supreme Court did not take up that Justice Ginsburg felt it should have addressed was Brillon’s attitude.[259] According to the majority, “just as a State’s ‘deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the [State],’ so too should a defendant’s deliberate attempt to disrupt proceedings be weighted heavily against the defendant.”[260]
Of course, it is improper for a defendant to threaten the life of their counsel. But it is also improper for their counsel to fail to move a case forward for three years while their client’s life and innocence hung in the balance. The Court attached heavy weight to Brillon’s own personal role in his delay due to his expressed frustration both to the trial court and to his counsel (with little to no weight on the apparent funding discrepancy that existed across five of Brillon’s six attorneys). Assuming Brillon’s behavior was relevant, was it not justified? Brillon’s frustration evidenced his desire for a speedy trial, a right our Constitution demands he be entitled to. Reasonable minds may differ; some may see Brillon’s actions as actual frustration between him and his counsel for justifiable reasons, while others could see Brillon’s aggressiveness as another delay tactic. What is unreasonable is that Brillon was forced to wait three years for an attorney, his sixth in this case, with enough time on their hands to make the necessary motions to bring about a determination on his innocence. Brillon asked for the bare minimum; the courts did not give it to him.
Part II discussed how Supreme Court cases, including Brillon itself, set up several rules to color and shape the systemic breakdown that the Court failed to define and identify in Brillon.[261] Dodson held that at base, public defenders are not state actors and thus are not subject to the consequences of the government’s delay. Brillon solidified and extended this concept by assigning any delay attributable to a defendant’s state-employed public defender not to the state but to the defendant, regardless of the defendant’s intention to be adequately represented and their desire to go to trial. The Court’s speedy trial regime is without both substance and accountability. As a result, Brillon’s purported remedy further obscures the road, depriving Lady Justice of direction.
III. Effects on State Law: How Courts Have Interpreted Systemic Breakdown
Since Brillon was decided in 2009, only a handful of cases have dealt with the systemic breakdown argument. Scholars have continued to raise ever-failing IAC claims as a response to ineffective counsel, or they simply fail to reach the merits of systemic issues, rather than analyze and develop the potential of a systemic breakdown argument.[262] Thus, Part III will explore how state courts have grappled with “systemic breakdown.” No other scholarship has analyzed how courts have battled with this undefined caveat, nor attempted to spin together a coherent framework or set of themes. This Part will show that state courts’ battles with the term’s opacity denied justice to indigent defendants. I begin in California, where courts make defendants adhere to an “open secret” burden of proof for systemic breakdown. I then expand to Georgia, where caselaw has made it near impossible to find systemic breakdown as long as one public defender is on payroll, regardless of their adequacy. Finally, I discuss a 2023 Mississippi case that exemplifies the limits of federalism to counter a state court’s legal and factual findings, those limits based in legal and structural weaknesses (a technicality, some would say).
A. People v. Williams
People v. Williams[263] exemplifies California’s first attempt to wrestle with and define the systemic breakdown concept.[264] It ultimately failed. Here, Robert Lee Williams and his codefendant were arrested in July 1995 for attempted murder, sexual penetration with a foreign object, and first-degree murder with special circumstances.[265] Williams’s first counsel, Riverside County Deputy Public Defender Forest Wright, requested (or did not oppose) several continuances for multiple reasons, including that he was ill and that he could not meet with Williams; Williams’s co-defendant’s counsel also sought a continuance that Williams verbally opposed, but which Williams ultimately agreed to.[266] Six months later, in January 1996, Williams requested a Marsden[267] hearing to express dissatisfaction with his assigned counsel and that he wanted “an attorney that [was] not so busy.”[268] Wright agreed, saying: “He’s right. I am too busy. I would like to get rid of a few cases.”[269] Nonetheless, he assured the trial court he would be able to provide a competent defense.[270] The trial court denied the first Marsden motion.[271]
In May 1996, after Williams requested and the trial court held another Marsden hearing, Wright acknowledged that his being “in court every day, all day” was impeding his ability to work on motions.[272] He indicated, however, that he was proceeding “as diligently as [he could] at this point, given the staff level that [he had] among qualified persons.”[273] The trial court denied Williams’s second Marsden motion and continued the trial to October 1997.[274] It noted “the constitutional right to have a competent attorney, in this Court’s opinion, far outweighs the constitutional right to a speedy trial, which does not mean that we totally ignore the right to a speedy trial.”[275]
By Williams’s fourth Marsden motion in 1996, Williams explained in open court that he did not feel he was “going to get a fair trial. . . . [E]verything that [defense counsel] stipulated that he needed the extra 60 days for [at the last hearing], . . . still none of them [were] completed.”[276] By September 1996, the prosecutor announced he was ready for trial and had to remind defense counsel to pick up the pace, indicating “for the record that [he had] received no reports from either of the defendants relating to reciprocal discovery.”[277] On September 11, 1996, Wright said he was still not ready for trial, requested second counsel, and moved for a four-month continuance as his ongoing duties to represent other clients in ten other contemporaneous felony cases were taking his attention away from this case.[278] The trial court asked if Defendant Williams was willing to waive his right to a speedy trial, to which he responded, “I’ll go ahead and waive time. It won’t make any difference.”[279]
The Riverside Public Defenders would eventually declare conflict with Williams, and Williams would cycle through a total of five additional criminal defense panel (CDP)[280] attorneys.[281] He would experience four more years of delay until he reached trial in 2002, seven years after his arrest.[282] His fourth CDP attorney (sixth attorney overall), John Aquilina, made the court aware of what he thought had occurred in Williams’s case prior to his assignment:
I guess what distresses me the most is that the public defender was appointed to Mr. Williams’ matter, it appears, on August the 11th of 1995, was relieved in April of 1998, after declaring a conflict of interest. And . . . it would appear all an attorney would have to do is catch up to what has occurred. Quite candidly, I don’t see that even five percent of the investigation necessary in the guilt phase of this case has been conducted.[283]
The judge then remarked to Williams, “we got to talk about what’s going on—and I think it’s safe to say it’s been your concern all along that not enough has been done in your case.”[284] Aquilina acknowledged that Williams was “partly correct” in that Aquilina “[had] not been able to give [defendant’s] case or [defendant] the attention he needs or deserves.”[285]
In Williams’s case, there were, in total, twelve Marsden motions,[286] six declared conflicts of interest,[287] a change of presiding judge,[288] a change of prosecutor,[289] and nearly a dozen counsel.[290] The second prosecutor during trial insinuated that Williams was somehow purposely causing this delay,[291] even though Williams transparently sought to move the case forward, consistently resisted continuances, and raised his unresponsive counsel concerns to the court. For large chunks of the year, over multiple years, Williams’s defense counsel did not move the case forward due to a lack of capacity while Williams sat in jail, still presumptively innocent. Williams’s last attorney, CDP Attorney Bruce Cormicle, during an ex parte hearing held on April 25, 2002, represented that he had “basically started from scratch” because “nothing had been done for the past six years . . . .”[292] The case was finally heard in July 2002, seven years after arrest, where Williams was found guilty and sentenced to death.[293]
Bringing his case to the California Supreme Court, his life on the line, Williams argued that the nearly seven-year delay between his arrest and trial violated his speedy trial right.[294] Yet California’s highest court held that there was no violation, neither from the prosecutor or the trial judge nor from any systemic breakdown.[295]
Not only was Williams a death penalty case that was automatically appealed with an extremely long, convoluted record, but the Williams court also had to interpret the newly established Brillon test with the undefined systemic breakdown addendum. The court began its speedy trial right analysis in typical fashion, stepping through each of the four original factors. The first was length of delay, a “double enquiry” that operates as both a factor and trigger, as delay must be “presumptively prejudicial.”[296] Though it avoided any bright-line rule, keeping with the spirit of Barker,[297] the court acknowledged that presumptive prejudice has been found by the U.S. Supreme Court when postaccusation delay approaches a year.[298] Here, it was seven.[299] Even considering the gravity of the offense and the complexity of the underlying facts in the guilt phase, “a delay of seven years is ‘extraordinary.’”[300]
Next the court looked at whether Williams suffered prejudice because of the delay. The court found there was indeed oppressive pretrial incarceration.[301] Being jailed “without a trial for seven years is ‘oppressive.’”[302] Williams also claimed two detriments to his defense: (1) that any meaningful investigation into third parties motivated to kill one of Williams’s victims was lost due to the delay, and (2) the delay allowed the state to stabilize a witness’s inconsistent testimony.[303] However, the court withheld weighing this factor for or against either party until it assigned blame for the delay.[304] It did the same for the third factor—whether Williams asserted his speedy trial right—despite Williams’s multiple attempts to move the case along.[305]
The court held the fourth factor, blame for delay, for last, hinging its ultimate decision for the two previous Brillon factors on its blame analysis. In doing so, the court labeled blame for delay the “flag all litigants seek to capture.”[306] The ultimate question here became not where the majority of Brillon factors lay, but who was more to blame: the state or the defendant.[307] In answering this question, the court analyzed the trial court, the prosecution, and the defendant separately.[308]
The prosecution, the court reasoned, caused only a handful of delays.[309] The trial judge was also found to be relatively blameless, though not completely.[310] The court acknowledged that, though the trial court sought to balance the right to a speedy trial with the right to adequate representation and a fair trial, it could have done more to move the case along.[311] Although the trial judge was the “captain of the ship . . . and . . . the ship will go in circles if the crew is running around the deck with no firm marching orders,”[312] the court did not find the trial judge to be enough at fault to seriously impact Williams’s constitutional rights.[313]
That left only the defendant and his many counsel. “[T]he lion’s share of delay resulted from defense counsel’s lack of progress in preparing this case for trial.”[314] Because defense counsel’s delay was presumptively the defendant’s fault, it was up to Williams to rebut the presumption.[315] What was left for the court to sift through was whether the many counsel and their lack of capacity indicated a systemic breakdown for which the state could still be blamed.[316]
The court first acknowledged there was indeed a “revolving door” of public defenders and appointed counsel,[317] with little progress in preparing Williams’s case for trial. But the court’s specific focus was on whether a systemic breakdown had occurred, “not on whether any particular attorney or attorneys performed deficiently.”[318] Though it was possible to read Williams’s factual record as indicating institutional problems that could qualify as systemic breakdown, the record on appeal “contain[ed] no facts that affirmatively support this conclusion” rather than individual counsel error.[319]
Williams’s small platoon of counsel also did not make the necessary motion to dismiss on speedy trial grounds in the trial court (just the twelve pro se Marsden motions criticizing his attorneys’ incapacity and the trial judge’s acquiescence to the delay).[320] The defendant’s and his attorneys’ many statements were therefore never examined in an “adversarial proceeding, and the trial court made no findings that might inform the issue . . . .”[321]
Because neither Williams nor his ever-changing defense counsel made a motion to dismiss for violation of his speedy trial right, the court claimed there was too much left unknown.[322] It did not know whether the conflict that ended his first counsel’s two-year representation was reasonably avoidable, or whether it resulted from a “flaw in the public defender’s mechanism for identifying and avoiding conflicts.”[323] It did not know whether the conflict that ended John Aquilina’s representation after eleven months could have been avoided.[324] And of the various other attorneys who apparently did little or no work on Williams’s case, it did not know whether the lack of progress was attributable to each attorney’s inability to properly manage their caseload, or whether the performance of individual attorneys was indicative of “unreasonable resource constraints, misallocated resources, inadequate monitoring or supervision, or other systemic problems.”[325]
Because the court was unable to conclude upon review that delay resulted from a “systemic ‘breakdown in the public defender system,’” it blamed Williams’s defense counsel’s lack of progress on Williams.[326] The absence of evidence identifying systemic breakdown required the court to charge Williams with the delay that he himself detested, the inadequacy that he incessantly pleaded with the trial judge to cure, and the blame for the revolving door he sought to shut.[327]
Williams’s case reveals a truly horrifying feature in the Barker-turned-Brillon analysis: its frailty.[328] Without a clear definition of systemic breakdown, courts are forced to define a legal standard in real time. Of course, courts are not unfamiliar with this practice; it is common for lower courts to interpret Supreme Court principles into legal procedure. In systemic breakdown situations, however, the stakes are incredibly high. A defendant must prove that the time wasted in preparing a defense (while they wait in prison and apprehension) was not their fault but their lawyer’s, the individual they have trusted to guide them through treacherous legal territory. That is the whole point of having a lawyer. But indigent defendants have no choice in their counsel or their counsel’s employer. They must settle for lawyers who are so underfunded and under resourced that their experience is like that of Williams.[329] The months and years spent in jail while innocent compound upon the months and years an indigent defendant may spend in prison for their hypothetical guilt. Williams’s stakes were the highest, as death was the consequence for failure.[330]
In California, the Brillon test makes for an incredibly high bar for defendants to clear. Counter to the California Supreme Court’s assertion, there was in fact a mountain of evidence showing a systemic breakdown in Riverside County, illustrated by every single assigned counsel alluding to the same excuse: “I need more time because counsel before me did not do the work they were supposed to.” Williams made the same point twelve times. His Marsden motions, though not motions to dismiss, spelled his public defenders’ and trial judge’s systematic acquiescence to a never-ending dance of court appearances, excuses, and continuances. All the while, Williams, presumed innocent, was shuttled back and forth to his jail cell, unable to live his life, his attorneys unable or unwilling to provide him an answer on whether he would live or die.
Because it did not receive the right papers, the California Supreme Court failed to identify systemic breakdown. The court recognized that Williams sought repeated enforcement of his rights, experienced presumptive prejudice, and the delay he experienced properly triggered this inquiry. But since his lawyers never made the proper motion, there was no judicial scrutiny for the court to hang its hat on. This too was not Williams’s fault but the fault of his attorneys. The record was unclear as to why he was not counseled to bring a motion to dismiss or whether he was counseled to do otherwise. What is clear is that his trial attorneys were not acting as Williams’s proper advocates, failing him repeatedly, and the court’s construed systemic breakdown remedy was no remedy for him. None of his attorneys filed a motion to dismiss for speedy trial right violation despite the “extraordinary” number of years it took to bring his case to trial.[331] The trial judge forced Williams to choose between his fundamental rights, and California’s highest court punished the judge with a wrist slap. The prosecution failed to move the case forward, as was the state’s duty and purpose. As a matter of due process, this was everyone’s fault but Williams.
Though each of Williams’s attorneys failed him, the court found that ultimately Williams was to blame, not the state or county that employ his overworked, under-resourced attorneys. This blame was misplaced. Proper adjudication of Mr. Williams’s case would not force him to choose between prepared counsel and a speedy trial. Without proper emphasis on this inadequacy, we will only be left with a self-fulfilling prophecy that the government has designed and perpetuated. It must be unconstitutional for indigent criminal defendants, or any criminal defendant, to have to choose between adequate counsel or a speedy trial. The California trial judge in Williams’s case was wrong to think otherwise,[332] and the California Supreme Court was out of place in acquiescing to such a notion. The slim benefit of a case like Williams is that it provided guidance on what public defenders must and must not do to, in the face of improper resources, adequately assist their clients in adjudicating their constitutional rights.
B. People v. Superior Court (Vasquez) & People v. DeCasas
In contrast to Williams, the California Court of Appeal five years later found systemic breakdown in People v. Superior Court (Vasquez)[333] and, two years after that, in People v. DeCasas.[334] For the first times after Brillon, a court attributed delay and attorney turnover not to the defendant, but to the government.
Defendant George Vasquez received twelve years in state prison for four counts of committing lewd or lascivious acts on a child.[335] Before his release, the People filed a petition to commit Vasquez as a sexually violent predator (SVP) to a state mental hospital under California’s Sexually Violent Predator Act.[336]
California’s Sexually Violent Predator Act[337] is rather unique in its heavy-handed enforcement.[338] Unlike the defendants previously mentioned, Vasquez was already a prisoner.[339] The SVP Act imposes its label on a prisoner who has committed a sexual offense and has “a diagnosed mental disorder that makes the person a danger to the health and safety of others.”[340] This meant Vasquez was civilly committed to a mental health institution following his already-served prison sentence.[341] The SVP label is determined by the trial for the underlying offense, in which the district attorney has the burden to prove beyond a reasonable doubt that a prisoner is also an SVP.[342] Under a 2006 ballot proposition, the SVP Act was amended to civilly commit prisoners indefinitely, with prisoners annually evaluated until they are no longer found to be an SVP.[343]
From the beginning of his civil commitment to the end of his trial, Vasquez experienced seventeen years of delay, a parade of counsel, and dozens of continuances that pushed his trial date by several months at a time.[344] His case faced many similar blockades as Williams’s. Los Angeles County Deputy Public Defender Michael Suzuki, Vasquez’s first counsel, announced seven years into this delay that the public defender’s office was “unavailable” for trial due to inadequate funding.[345] Once the Public Defender’s Office did receive funding three months later, Suzuki left the case.[346] Public Defender Omar Hazel took over for the next four and a half years, with no work to show for it besides twenty-three court appearances and eight continuances.[347] By December of 2014, Hazel had been relieved by Deputy Public Defender Terry Shenkman, who remarked in open court that the Los Angeles County Public Defender’s Office suffered a staff reduction of 50 percent of the lawyers,[348] adding
[t]hen we suffered an additional reduction in the paralegals. And I have currently lost my paralegal and don’t have a paralegal assigned on the case. So in addition to having my workload greatly increased, I also have cases in which I don’t have assistance on, and I am currently engaged in two probable cause hearings, and I have a restoration of sanity hearing that’s supposed to begin. So because of this workload, we will have to see in January when we have the reports what the lay of the land is.[349]
Vasquez’s case, in light of Shenkman’s admission, was continued.[350] But in November of 2016, after the court asked Vasquez if he was willing to postpone to allow Public Defender David Santiago (his fourth public defender) to prepare for trial, Vasquez responded: “I’m not willing to waive my right to have a trial in a timely manner, nor am I willing to waive my right to have prepared counsel. These constant changes of counsels have denied me both. Enough is enough.”[351]
Vasquez would remain in limbo until January of 2018, more than a year after making those remarks.[352] Bar Counsel Mark Brandt (Vasquez’s sixth attorney) moved to dismiss Vasquez’s case for violation of his speedy trial right.[353] Santiago even testified for this motion, stating he “probably could have done an okay job. But . . . Mr. Vasquez was deserving of a good job, and I was not prepared to . . . dangle my bar card out there and risk . . . not giving him a proper defense.”[354]
The California Court of Appeal held that the breakdown Vasquez experienced forced him “to choose between having prepared counsel and a timely trial. Yet under our Constitution he had a right to both.”[355] Noting the seventeen-year delay was presumptively prejudicial, the court recognized that Vasquez made clear assertions of his right throughout the delay.[356] He was hindered for the first ten years of this delay by his inability to appear in court and his desire to have prepared counsel.[357] Vasquez also experienced “oppressive” prejudice due to his pretrial confinement, even if his psychological evaluations did not support his release.[358]
Vasquez was also not blamed for this delay. Rather, his counsel, or more accurately, the county they worked for, was the focus of the court’s ire for the first time since the Brillon opinion was penned. Noting that Vasquez’s assigned counsel were not state actors, the court recognized “[t]he dysfunctional manner in which the Public Defender’s Office handled Mr. Vasquez’s case was precisely the type of systemic or institutional breakdown contemplated by Brillon and People v. Williams.”[359] The trial record showed that Public Defender Shenkman repeatedly raised to the trial court her inability to prepare for trial due to the 50 percent cut in her office’s staff and her increased workload.[360] She had no time to meet with her defense expert.[361] She was juggling multiple cases and lost her paralegal.[362] Then four months before trial, Shenkman was transferred out of the SVP unit.[363] Shenkman, Santiago, and Coleman (Vasquez’s fifth public defender) were hampered by dramatic staffing cuts.[364] Vasquez’s trial court record was more complete than the one in Williams, and his attorney made the proper motion, even if it took fifteen years to do so.[365] The court found all four Brillon factors to weigh in Vasquez’s favor, and his motion to dismiss was affirmed.[366]
Two years later, in the same county, the California Court of Appeal again held that a defendant’s constitutional rights had been violated, this time in People v. DeCasas,[367] making it crystal clear that there was a systemic issue. In fact, the same public defender, David Santiago, whose inability in Vasquez to bring Vasquez’s case to trial led to its dismissal, also represented Defendant Rodrigo DeCasas.[368] As in Vasquez, Santiago’s inability to bring DeCasas’s case to trial (more aptly, Los Angeles’s inability) created the grounds to dismiss DeCasas’s case.[369] According to Santiago, Los Angeles County’s problems, including those affecting DeCasas’s case, were not “secret”: “It was very, very open and it was said in open court repeatedly by many, many public defenders,”[370] including Santiago himself. Santiago also stated, “I’m trying to make d[o] with what I can, trying to triage what I can do based on my office’s lack of resources.”[371] An attorney within Los Angeles County’s Public Defender’s Office wrote an anonymous memo to the county’s Board of Supervisors and the State Bar of California, in which they warned the Board and Bar that their abandoned clients would “have a viable lawsuit against the county.”[372] The trial court granted DeCasas’s motion to dismiss in 2019, thirteen years after his civil commitment began.[373] It concluded that the “[e]vidence support[ed] the conclusion that a systemic breakdown within [the public defender’s] office caused Mr. Santiago’s inability to bring [DeCasas’s] case to trial.”[374] That “systemic breakdown,” the court concluded, “caused the delay from 2014 forward.”[375]
In both DeCasas and Vasquez, the Courts of Appeal admonished the trial courts for acquiescing to such deplorable delays. The trial court in DeCasas, like that in Vasquez, failed to fulfill its duties “to set deadlines and to hold the parties strictly to those deadlines unless a continuance [wa]s justified by a concrete showing of good cause for the delay.”[376] Both trial courts accommodated repeated requests to postpone hearings, extend deadlines, and continue the trial based on vague assertions about needing more time.[377] And both trial courts forced DeCasas and Vasquez to choose between their right to prepared counsel and their right to speedy trial.[378] As captains of the ship, both trial judges’ failure to seek good cause additionally weighed against the state.[379]
The key differences between these cases and Williams were the operative motions and the defendants’ assertion of their right. In Vasquez, “enough is enough” rung loud and clear; it operated as a constructive assertion of Vasquez’s speedy trial right.[380] Vasquez signed a waiver of his speedy trial right under California law, but the trial court noted there was no “mention during court hearings of a written waiver.”[381] And even if a written waiver were signed, Vasquez’s constructive assertion would have displaced any existing waiver of such right.[382] DeCasas followed suit once the Vasquez decision came down.[383] But in Williams, the attorneys never made a motion to dismiss.[384] And though Williams repeatedly expressed frustration with the slow pace of his case, the lower courts did not find that Williams effectively asserted his right despite him saying throughout the litigation, “I don’t want to waive no time. I want to come on and do this. . . . [T]his case is my life.”[385] All that separated Williams from Vasquez and DeCasas was procedure and semantics.
With the Vasquez and DeCasas holdings, California had for the first time recognized systemic breakdown in the public defender system, implicitly defining and thus recognizing the systemic ailments that indigent defendants contend with.
C. Camacho v. Superior Court
The California Supreme Court responded to the lower courts’ interpretation of these unconstitutional delays—created in part by the SVP Act—not by striking down the law or calling for reform in line with federal constitutional principles, but by making it harder for an SVP defendant to prove they have experienced prejudice. In Camacho v. Superior Court,[386] the court held that an SVP’s nearly twenty-year trial delay to determine SVP status was no longer presumptively prejudicial as it was in Vasquez and DeCasas. Ciro Camacho was similarly situated to defendants Vasquez and DeCasas: He was an SVP whose case was continued over two hundred times, and for nearly eight years, beginning in 2010, he did not appear in court.[387] Camacho’s Merced County public defender, William Davis, asked for continuances because Davis had not “had a chance to discuss all the things that [he] need[ed] to discuss with [Camacho]” sixteen years into representing him.[388] In 2018, the prosecution had to state on record that Camacho had a speedy trial right, seemingly to remind opposing counsel.[389] Two weeks later, Camacho asserted his speedy trial right in court following the Vasquez decision.[390] In 2021, nearly three years later, Davis filed a motion to dismiss Camacho’s 2006 commitment petition.[391]
But the California Supreme Court distinguished Camacho from the previous 2018 courts of appeal decisions. The court first recognized that SVP cases are different from other criminal cases. For one, the SVP Act created indefinite commitment terms not subject to statutory time limits.[392] Unlike criminal trials that seek to establish liability for past events, SVP trials seek to establish the individual’s present need for mental health treatment.[393] This creates a unique incentive on both sides to delay trial.[394] An SVP defendant may eventually meet the criteria to no longer be categorized as an SVP as the individual receives more treatment over time.[395] This puts into contention whether an SVP defendant experiences prejudice even after twenty years without a trial.[396]
Though it was evident that for eight years Camacho was not present in court and that Davis and Camacho did not meet to discuss the case, the court assumed Camacho assented to nearly all two hundred continuances.[397] This was another large contrast from Vasquez and DeCasas. Unlike in those cases, where the courts of appeal saw multiyear-long absences as hindrances to Vasquez’s and DeCasas’s ability to mount their defense, the court here assumed Camacho was still in charge. It made this determination despite a limited record.[398]
Camacho’s purported incentives to delay the case underlined the court’s assumption that his absences from court were of his own volition. The court did not extend this assumption to the prosecution, even though it was incentivized to allow delay if “the individual progressed in treatment to the point where he was no longer a danger to public safety, the People could simply dismiss the case.”[399] And the court again let the trial judge, “the captain of the ship,”[400] off easy despite the judge’s failure to find good cause for a substantial portion of continuances and failing to fully develop the record.[401]
Nor did the California Supreme Court find systemic breakdown in this case. Instead, it held that the record suggested Camacho did not want a speedy trial and was not prejudiced by the delay he experienced.[402] Though Camacho was not brought to court for eight years, the court found that he did not timely assert his speedy trial right since “[t]he more serious the deprivation [of the speedy trial right], the more likely a defendant is to complain.”[403] Lastly, partially overturning Vasquez and DeCasas, the court held that there was little reason “to apply a presumption of trial prejudice in the SVP context,” reasoning that “[s]evere prejudice to the alleged SVP’s defense is less likely to result purely as a function of the passage of time.”[404]
Despite the many procedural issues that underlie the SVP Act in California, the California Supreme Court affirmed the Camacho decision and the procedural mechanics of the Act in Needham v. Superior Court.[405] The Camacho court, in partially overturning Vasquez and DeCasas, also cemented the assumption that SVPs do not experience the same pretrial oppression as other criminal defendants, distinguishing involuntary civil commitment from prison.[406] No longer do SVPs have all the same procedural protections and assumptions as other criminal defendants when substantial delay is involved.[407]
Yet the court implicitly made other assumptions that prejudice defendants as a whole. Camacho did not appear in court for eight years, having no contact with his public defender, while that same public defender requested eight years’ worth of continuances.[408] With no presumable contact, neither his counsel nor the court knew Camacho’s desires or state of mind. Without knowing whether the defendant wanted this delay, the Camacho court assumed so, and incentivized public defenders to simply kick the can down the road. The court also did little to prevent trial courts from creating these records, only doling out slaps on the wrist. Faced with a decades-long delay, the California court encouraged more.
Where does this leave systemic breakdown in California? Camacho’s limited holding makes it harder for SVP defendants to claim a speedy trial right violation due to systemic breakdown in the public defender’s office. But Vasquez and DeCasas still stand as examples of this systemic breakdown; there is no question that Los Angeles County’s massive budget cuts substantively impacted the quality of representation that Vasquez and DeCasas experienced. And though Vasquez and DeCasas were partially overturned, delay can still be the result of systemic breakdown. Though, without the length of delay being a presumptive trigger in the SVP context, SVPs are left in a precarious predicament if they feel their speedy trial right was violated.
But must it take decades-long delays and massive budget cuts with open admissions by the very counsel that represent them for indigent defendants to prove systemic breakdown? This seems to be the case in the Golden State. Despite the underdeveloped record in Camacho, there is evidence of breakdown between Camacho and his defender due to Camacho’s absence from court. Neither the trial judge nor the California Supreme Court investigated this absence, and it was instead accepted as the status quo. The same went for Williams. Half of Williams’s attorneys openly remarked in court how busy they were—so busy that they were unreasonably delaying Williams’s case. The court did not find systemic breakdown because Williams’s attorneys did not properly counsel their client nor file the correct motion, leaving Williams to do all the work. The courts’ acquiescence to absurdity must itself be challenged, with an expanded view of what can account for systemic breakdown. California does well to add some meat on the bones of the Supreme Court’s skeleton definition of “systemic breakdown” but holds the bar impermissibly high without recognizing the full range of prejudice that occurs from delayed cases.
D. Weis v. State (Georgia)
Georgia, in contrast to California, took a much harsher approach to determine systemic breakdown, with the Georgia Supreme Court finding that criminal defendants cannot claim a systemic breakdown unless there are no public defenders available to work on their case.
In 2009, the Georgia Supreme Court failed to find systemic breakdown in Jamie Weis’s death penalty case following an over three-year delay.[409] Weis was arrested in February 2006 for the robbery, beating, and shooting of a senior citizen.[410] He was originally assigned public defenders from the Griffin Judicial Circuit Public Defender’s Office.[411] But eight months later, these attorneys were replaced by the Georgia Public Defender Standards Council.[412] The Standards Council made many motions on Weis’s behalf, yet after six months, they ran out of funds not only to pay for experts and investigators, but to pay themselves.[413] Weis was then returned to the Griffin Public Defenders but refused to cooperate with them.[414] It was only shortly after that the Griffin Public Defenders also moved to withdraw due to “a lack of funding for experts, investigation, and travel . . . and the public defender’s office’s lack of ‘time and expertise to conduct the extensive investigation that [was] necessary’” in the case.[415] The Griffin Public Defenders admitted that they were not competent to handle Weis’s death penalty case, and Weis refused to work with them.[416] Following a mandamus petition to compel the trial judge to reinstate the Standards Council, the judge did so, even though the Standards Council was still not being paid by the state of Georgia or anyone.[417] The Standards Council then filed motions to dismiss Weis’s indictment, for discharge, and for acquittal based on a violation of Weis’s right to a speedy trial.[418] It was only several months later that the Standards Council was able to fund Weis’s defense, yet never at the amount necessary to provide an adequate defense.[419]
Instead of dismissing the indictment against Weis for inadequate state resources, for underfunded attorneys in both the Griffin Public Defenders and the Standards Council, or for the stated incompetency of Weis’s replacement attorneys that delayed his case for three years, the Georgia Supreme Court held that Weis’s speedy trial right was not violated, creating the highest systemic breakdown threshold to date.[420] Here, the court reasoned that despite the funding issues for two separate public defender offices, Georgia’s “public defender system” had not broken down under the court’s interpretation of what “systemic” meant under Brillon, as there were still attorneys available within the public defender system to continue the case.[421] The court declared that “there can be no ‘systemic breakdown in the public defender system’ . . . when there are still attorneys within that system who are available to represent the criminal defendant.”[422]
The Georgia Supreme Court did not elucidate what it considered “available.” From its rendition of the trial court facts, it seemed to have found that the Griffin Public Defenders were “available,” despite their incompetency and lack of funding, solely because they existed to relieve the Standards Council. At least they had some funding, even if inadequate.[423] “Thus, although there were funding issues that had contributed to the delay . . . , the ‘public defender system’ had not broken down from the lack of funding at that point . . . .”[424] But the court almost completely disregarded the Griffin attorneys’ own stated inadequacies, finding that “[e]ven though the public defenders did not receive all the funds that they requested in the case, this did not change the fact that the attorneys themselves were being paid to represent Weis, and that they had a responsibility to move the case forward by representing Weis to the best of their ability.”[425] But their best was kept from them due to a lack of state resources.
In its analysis, the court instead zeroed in on Weis’s refusal to work with his replacement counsel as the main culprit for delay.[426] The court did not venture to find that Weis’s concerns were rooted in the Griffin Defenders’ own stated incompetence and funding issues. The court did not think to attribute this inadequacy to the state, which funds the Griffin Defenders. Instead, it laid the blame at Weis’s feet,[427] ignoring his desperate attempts to ensure he had the best chances at liberty and life. “Absent [Weis’] deliberate efforts to force the withdrawal of [his replacement attorneys], no speedy trial issue would have arisen. The effect of these . . . events [must be] factored into [our] analysis of [the] delay.”[428]
The dissent in Weis saw it differently. Finding that the trial court had abused its discretion, the dissent found that Weis “should not have been forced to choose between original counsel and new, unfamiliar counsel in order to seek a speedy trial.”[429] “The Public Defender Standards Council, a state agency, failed to adequately fund the defense even though it was charged with the responsibility to provide effective legal representation to indigent defendants.”[430] The dissent also withheld blame from Weis, recognizing it was the prosecution’s recommendation that Weis’s original counsel be replaced by the Griffin Defenders, who had not “earned his trust, confidence, and allegiance and were thoroughly unfamiliar with the defendant’s case.”[431]
The Peach State ran sour for Weis. Georgia’s decision in Weis amounts to erasure of an indigent defendant’s right to effective counsel under Powell v. Alabama and Gideon in the face of underpaid public defenders, or in this case, public defenders working without pay. Without clarity, the majority in Weis held that only if there are no public defenders available to work on a defendant’s case can a Georgia criminal defendant claim systemic breakdown.[432] Never mind whether the public defenders have the resources to devote to a defendant’s case; never mind the time and delay that will occur in running through those attorneys to find one with time on their hands; and never mind the seriously limited scope that the court sought to define systemic breakdown within despite the record before it. Although “[i]t is beyond question that the State is required to provide counsel and expert assistance to indigent criminal defendants,”[433] the Weis court effectively blamed Weis for his case’s delay because he could not afford to hire a private criminal attorney, thus further punishing him because of his poverty. This case exemplifies how absurd systemic breakdown interpretation can be without sufficient guardrails from the nation’s highest court.
E. Russell v. Denmark (Mississippi)
A state appellate court decision in certain contexts is resistant to federal court meddling, even though the Sixth Amendment is federal law.[434] This leaves lower federal courts ill-equipped to correct state courts’ interpretations of the Brillon analysis and the Supreme Court’s interpretation of the speedy trial right. This interaction between state and federal courts was on full display when Mississippi had its run-in with a systemic breakdown claim following Sedrick Russell’s habeas corpus petition alleging that Mississippi and his public defender delayed his case contrary to his explicit wishes. The Mississippi Court of Appeals denied his petition even though a two-year-and-three-month delay caused his key witness to disappear, and the Mississippi State Supreme Court summarily denied certiorari.[435] His public defenders also failed to contact him for over a year.[436]
The federal district court, granting Russell’s pro se habeas corpus petition, found that the Mississippi Court of Appeals erred in not finding systemic breakdown in Russell’s experience with his public defender and trial court.[437] According to Russell’s pro se petition, Russell’s public defenders allowed Russell to “languish in jail for more than nine months” waiting for a mental evaluation he did not ask for.[438] Russell also wanted to bring an alibi defense, but his defense was impaired when he lost contact with his key alibi witness.[439] The federal district court found that this was not only a speedy trial right violation based on the Brillon factors, but systemic breakdown from a “complete absence of counsel,” and it was objectively unreasonable for the Mississippi Court of Appeals to not weigh blame for delay against the state.[440]
But the Fifth Circuit Court of Appeals overturned the district court’s finding of systemic breakdown because the district court abused its discretion to review the Mississippi Court of Appeals’ factual findings.[441] Governed by the Antiterrorism and Effective Death Penalty Act (AEDPA),[442] federal courts must review state court habeas corpus decisions deferentially. AEDPA permits a federal court to grant habeas relief only where a state court “decision . . . was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”[443] Deference applies “even when the state court decides an issue without fully explaining its reasoning.”[444] The Fifth Circuit thus found that the district court overstepped its authority and reviewed the case de novo[445] rather than affording to the Magnolia State adequate deference in deciding to deny Russell’s habeas corpus petition.[446] Russell’s habeas corpus petition was denied, and he was sentenced to life.[447]
This case highlights federal courts’ procedural straitjackets to review state decisions on federal questions. In Russell, because of AEDPA, the federal district court was restrained from interpreting federal common law differently from the Mississippi courts’ interpretation, even when the state courts did not fully explain their reasoning and got it wrong. AEDPA sets such a high bar for federal courts that they are unable to correct blatant state blunders, as was the case in Russell. This hinders correction and is another example of the hand tying that courts impose upon themselves to prevent addressing systemic breakdown.
This Part described several case studies where systemic breakdown has been interpreted and curtailed following the Brillon decision. These cases demonstrate many state courts’ conservative nature and unwillingness to label blatant public counsel inadequacy as systemic breakdown. The California Supreme Court in Williams was incapable of labeling Williams’s ordeal as systemic breakdown despite his attorneys’ procedural mistakes. State statutes like the SVP Act in California are a magnet for constitutional violations. And federal statutes like AEDPA prevent federal de novo review in circumstances plagued by inadequate counsel, forbidding federal courts from deviating from incomplete records and court analysis. Thus, in the near empty landscape left for courts to traverse, courts have chosen to create an extremely high bar for defendants to meet to prove systemic breakdown.
IV. Systemic Breakdown: A Sane Definition
Parts II and III provided several revelations. Judges are reluctant to find systemic breakdown. Courts have “shied away from responsibility” for institutional problems and “shirked a stronger, more affirmative role in systemic reform.”[448] This is especially difficult for indigent defendants with an even slimmer chance of retaining, let alone financially affording, counsel with the resources to write the appropriate motion.[449] One way to address this is to provide a bright-line rule and definition of systemic breakdown that centers the experiences of criminal defendants and their fundamental rights, rather than the realities of an underfunded, bureaucratic legal system. Using cases where courts found systemic breakdown, I offer guiding themes and propose a definition that centers defendants’ realities. Parts IV.A–D will view or review cases decided in California, New Mexico, Mississippi, and Kentucky—the only cases that have made their disposition on this systemic breakdown caveat. They are in descending order of difficulty; the hardest approaches to find breakdown are first. Part IV.E synthesizes this data into a definition.
A. California: The Open Secret
California has exemplified its higher burden for finding systemic breakdown in Vasquez and DeCasas. Though not explicitly defined, Los Angeles County’s financial crisis and firing spree offer the most egregious, and therefore salient, examples of systemic breakdown that courts have had to deal with (at least from what appellate courts have chosen to review). But California courts seem hesitant to find systemic breakdown in any situation less drastic. Thus, in California, there needs to be evidence of some huge financial weakness in the local public defender office in question—evidence that appears on record and impacts multiple public defenders. In both Vasquez and DeCasas, public defenders remarked in open court that huge budget cuts not only threatened their cases but their very employment. Counsel for Vasquez repeatedly raised to the trial court her inability to prepare for trial due to the 50 percent cut in the Los Angeles County Public Defender’s Office staff and her increased workload. She had no time to meet with her defense expert. She was juggling multiple cases and lost her paralegal. Los Angeles County’s public defenders were placed in the “untenable position of either [violating their clients’ right to effective assistance of counsel] or effectively abandoning their clients.”[450] This seems to be the bar to meet in California, given that Camacho, contrarily decided three years later, did not have an “open secret” record.
The conditions described in Vasquez and DeCasas are extraordinary and compelling. They should not be the bar. The problem should not become an open secret with overworked attorneys threatening lawsuits against their employers before the court seizes the opportunity to step in. Though it is good that the California Courts of Appeal found systemic breakdown occurred for DeCasas and Vasquez, it took over a decade for them to do so with red flags abound. It took too long for the courts to pull the trigger on this madness, resulting in violation of the constitutional rights of many California defendants.
B. New Mexico: Systemic Breakdown Before It Was Cool
In a case decided right before Justice Ginsburg coined the term systemic breakdown, the New Mexico Court of Appeals held that a criminal defendant’s three-year delay ahead of trial was a violation of his speedy trial right.[451] Using a systemic breakdown analysis in all but name, this delay, the court held, was not due to Defendant Paul Stock’s attorneys but due to the state of New Mexico. Stock was charged with counts of criminal sexual penetration of a minor. The court found no intentional delay strategy by any of Stock’s three public defenders, all of whom testified they “were operating under extremely heavy caseloads, ranging from 200 to 300 cases each . . . and 75 to 100 cases for the district defender, who also had administrative duties.”[452] After no activity for nearly a year and a half, and over three years total of delay, the court affirmed the dismissal of all charges against Stock and ordered his release from custody. In its analysis, the court found three of four of the pre-Brillon factors[453] weighed in his favor, attributing New Mexico as the reason for delay since “it is the State’s responsibility to bring a defendant to trial.”[454]
Stock held the defendant’s public defenders less accountable for the delays caused by their workload. Like in Vasquez and DeCasas, Stock’s attorneys made a record of systemic delay in the trial court. The trial court and highest state court also stepped in to denounce the conditions that created the delay. The trial judge was “of the view that it was ‘humanly impossible for lawyers to practice law under the conditions that we’re asking them to practice law.’ To the extent that delays can be blamed on the overburdened system, that also cannot be held against Defendant.”[455] The New Mexico appellate court stated that Stock’s case showed “‘the need for the legislature, and the governor, and the people of this state to wake up and start properly funding not only the public defenders’ office but also the district attorneys’ offices,’ because otherwise courts would have to continue dismissing cases that were not timely prosecuted.”[456]
The court dismissed charges upon review and receiving testimony of Stock’s public defenders’ impossible workload, similar to Vasquez and DeCasas, but the attorneys in Stock did not have to go so far as to testify that this was an open secret or threaten to sue the county. It was dysfunctional on its face. It did not take fourteen or seventeen years for the court to recognize the problem, and the court did not simply acquiesce to never-ending continuances; it critiqued the state and found it ultimately responsible. This behavior highlights a lower burden for public defenders than California’s precedent.
The Land of Enchantment induced a bewitching decision upon systemic breakdown doctrine even before the term was coined. But it is unclear whether the New Mexico Court of Appeals would have felt compelled to attribute much of the failure of Stock’s assigned public defenders’ delay to the state, as it did here, or against the defendant, as Justice Ginsburg ordained, if decided after Brillon.[457]
C. Mississippi: Counsel Neglect
The burden in the 2021 district court decision Russell v. Denmark is still lower. Russell “doggedly invoked his speedy trial right,”[458] knowing that his alibi defense depended on keeping in contact with his witness. The loss of this witness proved prejudicial, as there was a “high probability” that the witness testimony would have altered the outcome of his aggravated assault trial.[459] The over two-year delay was presumptively prejudicial, though it did not weigh heavily against the state due to Mississippi precedent.[460] What did weigh heavily against the state was its inability to procure counsel. The federal district court found the delay during the fourteen-month period where Russell had no access to a lawyer fell “squarely on the shoulders of the Hinds County Public Defender’s office and the trial court. The complete absence of counsel constitute[d] ‘a systemic “breakdown in the public defender system.”’”[461]
Here, there was no open secret, no public defender testimony, and no contemporaneous budget cuts. Russell’s first two public defenders were simply inexcusably absent. Russell’s third attorney further delayed Russell’s case by requesting a mental exam against Russell’s wishes.[462] Here, Russell’s multimonth lack of counsel weighed against the state. Following Brillon’s precedent, the district court blamed the state for this delay, not Russell or his public defenders. Russell makes clear that apathy from state actors, including public defenders, in a defendant’s case should qualify as systemic breakdown when a defendant’s ability to build a proper defense is jeopardized.
D. Kentucky: Negligence That Does Not Tip the Scales
Worth mentioning is a case out of the Bluegrass State where systemic breakdown was found but ultimately did not weigh so heavily that it altered the total Brillon analysis against the state.[463] Defendant Randall Sutton was charged with armed bank robbery but entered a global plea agreement to plead guilty to two Ohio charges and two Kentucky charges. However, because the Clerk’s Office in Cincinnati had not yet received the proper paperwork transferring Sutton’s case from Kentucky to Ohio, Sutton was only able to formally enter a guilty plea to the Ohio charges and not the Kentucky charges.[464] Five years after beginning his sentence, Sutton filed a motion to vacate,[465] challenging his Kentucky conviction and sentence. The Southern District of Ohio returned the Kentucky charges back to the Eastern District of Kentucky to try Sutton again, but he moved to dismiss those charges, arguing among other things that his Sixth Amendment right to a speedy trial had been violated.[466]
Considering the Brillon factors together with the unique circumstances of this case, the Kentucky district court held that defendant’s speedy trial right had not been violated. Though the over ten-year delay was presumptively prejudicial, Sutton was not prejudiced by the delay because he “intended to plead guilty to the Kentucky charges in 2007.”[467] He offered no evidence that his defense was impaired by the prosecution or his own public defenders. And he did not assert this right until ten years had passed, and his intent to plead guilty before casted “doubt on the sincerity of the defendant’s demand” when requested.[468]
Interestingly, the reviewing federal district court concluded that the trial court, the prosecution, and the defendant—all the actors involved in Sutton’s criminal trial—were to blame for the plea and sentencing defect. And the failure to ensure Sutton “formally pled before sentencing likely constitute[d] negligence under the Barker hierarchy.”[469] But the district court also did not find that the reasons for delay merited relief. Though there was “breakdown of the plea and sentencing process,” Sutton also failed to raise the issue on direct appeal, and he fully intended to serve his criminal sentence regardless of this breakdown.[470] This factor was found not to tip the scales in favor of the government or Sutton, and in the overall Brillon analysis, Sutton’s motion to dismiss was denied.
Sutton is a unique case. It offers the lowest bar to finding systemic breakdown, yet that breakdown did not weigh against the state in the ultimate Brillon analysis. A technicality alone—though completely the state’s fault that causes presumptively prejudicial delay—will not by itself result in a Sixth Amendment violation.[471] Sutton nevertheless highlights that systemic breakdown can be found even in negligent circumstances because it is the state’s responsibility to charge a defendant and ultimately move the case through all of its stages. Failure to do so is not blamed on the defendant, and the defendant has everything to lose if the state fails.
E. Defining “Systemic Breakdown”
Some observations. Courts have defined systemic breakdown across a wide spectrum. On one extreme end, massive budget cuts that clearly and loudly cripple an entire county’s public defenders, coupled with vocal attorneys in front of both the judge and the local bar association, may yield a systemic breakdown finding and ultimately a speedy trial violation. But other courts have held that there need not be an “open secret” of dysfunction and deterioration. Systemic breakdown need not be total decay of all funds and representation going toward all criminal defendants in a particular county as Vasquez and DeCasas would lead us to believe. Nor do attorneys have to attest to their inability to provide adequate representation in open court, like in Stock. Absent attorneys and a complacent trial judge are also systemic breakdown. Defendants deteriorating in jail, unable to see their attorney for months or even years on end, may or may not be connected to the attorney’s or the court’s incapabilities, but it could indicate substantial negligence and a breakdown in the criminal system’s adjudication and bureaucratic processes. Hence the state’s exceptional negligence could also be systemic breakdown. But whether that breakdown tips the scales into a speedy trial right violation depends on the other Brillon factors and additional circumstances. Sutton would be on the other extreme of the systemic breakdown spectrum, exemplifying an unfruitful yield for a defendant’s motion to dismiss.
The cases reviewed in Parts IV.A through IV.D show that it is the state’s job to move the defendant’s case forward. There must also be a motion to dismiss for violation of one’s speedy trial right, a procedural requirement that opens the door for the reviewing court to have the proper facts in front of it. And delay triggers the Brillon question after at least a year. There are exceptions, however, depending on the circumstances, and some states like Mississippi have drawn bright lines.[472]
Systemic breakdown can be found regardless of whether the defendant is active or idle; what is relevant is whether the defendant, separate from their public defender, has had the opportunity to make their pronouncements and desires known to the court.
With these revelations, a reverse-engineered definition of this Note’s title concept follows. Systemic breakdown is a set of manifested conditions that creates presumptively prejudicial delay before a criminal defendant’s trial or pretrial criminal proceeding. Presumptively prejudicial delay is that which extends beyond a year, or less, depending on the case’s complexity.[473] Systemic breakdown’s manifested conditions can be abused by all trial actors, including the trial court, prosecution, and public counsel. Conditions can include public defender delay resulting from under-resourced and unworkable caseloads caused by the state (Vasquez, DeCasas), unjustifiable acquiescing to delay by the trial court (Camacho), or gamesmanship or misjudgment by the prosecution (Barker, Sutton). Conditions can also be met by apathy and inattention that leads to prejudicial delay greater than a year (Russell). Delays caused by the state’s negligence, such as court congestion, a lack of courts, a lack of judges, or delays unexplained by the record, will weigh against the government.[474] Once delay exceeds a year, it is automatically subjected to an analysis looking at the Brillon factors: length of delay, reason for delay, assertion of the speedy trial right, and prejudices experienced due to delay. Attorney caseloads that exceed limits set by federal guidelines are considered a heavily weighted factor as to the state’s responsibility for delay in the systemic breakdown analysis.[475]
This definition not only follows most of Supreme Court precedent but also holds elements that are commensurate with a true recognition of the problem. It is a much lower bar than the one set by California. It recognizes, as in Sutton, that procedural mishaps alone are not enough to find a speedy trial right violation. But it also draws a bright line, recognizing that all prejudice experienced by indigent defendants are paramount. It further accounts for federal workload guidelines that have determined what an appropriate public defender caseload is. And it would not force defendants to choose between their fundamental right to counsel and their fundamental right to a speedy trial.
Incentives to game the system will also remain checked by the balance of power inherent in the criminal justice system. Discovery fights, preliminary hearings, motions to suppress, and other elements of both complex and relatively simple cases will still remain neutral factors in determining a violation, as long as both sides can prove that best efforts were made to diligently achieve objectives. A bright-line rule simply creates a rebuttable presumption upon the violating party, be that the prosecution or the public defender. That party must show that delay is justified or else caused by structural deficiencies, which creates an automatic trigger that recognizes the state’s role. Failure to justify or excuse delay can be met by existing court punishments: sanctions, reputational damage, ineffective assistance claims, § 1983 claims, and speedy trial right violation claims. Public defenders, then, will not be effectively incentivized to delay their cases and file frivolous motions.
How would this definition change the analysis? We could look again at People v. Williams. In that case, the court would render its decision by performing another Brillon analysis, triggered by Williams’s delay exceeding a year. Responsibility for the delay could remain in the framework of looking at the prosecutor, trial judge, and public defender separately. Delays granted by the trial judge would be heavily scrutinized; indeed, any findings of good cause would need justification in the record in writing, and delays without good cause should not be granted.[476]
Prosecutorial delays, as is currently the case, would also weigh against the state. Caselaw, statutes, and even the model rules have thoroughly contemplated how prosecutors can cause unnecessary and harmful delay by negligently and knowingly withholding discovery that they are obligated to turn over to the defense. But even then, many prosecutors are only required to turn over what they have; police departments are not obligated to turn over everything to the prosecutor’s office, nor are they necessarily punished for negligently omitting key discovery in a case.[477] Evidence of prosecutorial delay should be tolled against the prosecutor’s office. And as applied to Williams, a prosecutor’s insinuation that Williams is delaying his own case, when it is equally likely that he seeks adequate representation, should be scrutinized by the court. Despite myriad procedural mishaps, the Williams court nevertheless found it “clear that the lion’s share of delay resulted from defense counsel’s lack of progress in preparing this case for trial.”[478] Thus, assuming a more critical lens, if we again pose the question, “[i]s it us or is it him,”[479] the answer is it was the prosecutor’s own employer, Riverside County, who was at fault—not Williams.
Delay caused by congested courts, absent or insufficient judges, insufficient courtroom clerks, or further insufficiencies that can be tied to a state or local government’s inadequate funding should not just lightly weigh against the state but should be given the same heavy hand against the government as any other state-caused delay.
Then we look at public defenders. Under this Note’s proffered regime, the public defenders in Williams could argue that their own delays were due to inadequate state or local government funding and caseloads that exceed national standards. Such advocacy would weigh against the state rather than the defendant both in trial court and on appeal. Unreasonable absences and delays under these circumstances would presumptively prejudice the defendant by hindering a viable defense and subjecting the defendant to the conditions and anxiety of pretrial detention. Whether the defendant had the chance to claim and manifest their desire for a speedy trial would remain circumstantial. In Vasquez, Vasquez clearly invoked his right when he declared enough was enough. In Williams, it was less clear. Though Williams repeatedly expressed dissatisfaction with his attorneys’ pace, he ultimately waived his right and did not reclaim it.[480] It is very likely that this was a function of Williams’s disillusion and unfamiliarity with the criminal legal system, as he felt after his fourth failed Marsden motion and his attorney’s outright confession of ineffectiveness that waiving his right would not “make a difference.”[481] Thus, it is important to retain the Barker court’s denial of the demand-waiver rule and its approval of constructively reclaiming the right through analysis of the circumstances in totality. If the defendant could not express their desire because they were unavailable or because they refused to appear before the court, that could still weigh against the defendant. But a desire without an opportunity to express it should similarly weigh against the state. In Williams’s case, his repeated Marsden motions, rooted in dissatisfaction with his attorneys’ pace, should have been seen as constructively asserting his speedy trial right in circumstances where his attorneys likely did not properly counsel him on his ability to assert said right—as demonstrated by the twelve Marsden motions.
A finding of systemic breakdown, then, would result in the delay’s blame being laid at the government’s feet, not Williams’s. As the “flag all litigants seek to capture,” this would then swing the speedy trial right’s assertion and the prejudice factor against the state as well. Recall that the California Supreme Court hinged two of the four Brillon factors on the fourth: whether the defendant was to blame for his own delay. Thus, if he was not to blame for his delay, then he was prejudiced by the state, and his assertion was not part of some strategy to delay judgment. Not all state courts hook the factors to each other in such a fashion, as some courts look at them independently.[482] Nor is it necessarily the best method. In Williams, where the defendant was blamed for the seven years of delay he clearly opposed, the definition I offer would see his constitutional rights vindicated, not denied.
V. Recommendations and Counterarguments
The progressive and conservative elites of the 1930s and 1940s, wary of the government’s influence on public defenders, had their nightmares realized—but not in the way they initially envisaged. These stakeholders were concerned that state-funded public defenders would be subject to the government putting its thumb on the scale and puppeteering the defender into receiving the results the government wanted. They were largely correct. But instead of putting its thumb on the scale as a propagandist puppeteer, the state has put its thumb on the scale with its power of the purse, creating dysfunction and disproportion with its lack of financial parity and commitment.
Such malfeasance requires correction. In addition to requesting the Supreme Court’s clarification of the systemic breakdown concept, Part V will provide comprehensive discussions on key policy, procedural, and legal recommendations to remedy the indigent criminal defense system’s ailments. I will also address counterarguments. One that I lay at my own feet is that these recommendations are not a panacea. The ultimate cure to an ill-stricken system is to root out the cause, here being a perpetual state of mass incarceration, inadequate institutions that do not provide for people’s basic needs, and a government more adept at prosecution than upholding constitutional rights. Outside of a fundamental change to how we think of justice, I offer recommendations that will at the very least make our current system fairer and more aligned with our Constitution’s ideals.
A. Clarify the Systemic Breakdown Caveat
Of course, the Supreme Court should take charge of its mess. The issue of under-resourced public defender offices almost came to a head in Boyer v. Louisiana[483] in 2013. Though the Court ultimately determined that certiorari was improvidently granted,[484] Justice Sotomayor, joined by Justices Ginsburg, Breyer, and Kagan, wrote a dissenting opinion where she reasoned that Louisiana’s funding crisis was systemic breakdown under Brillon and should have been weighed against the state. Two years of continuances, Hurricanes Katrina and Rita, and a lack of funding for the defense all created the delay.[485] Louisiana’s state courts thus ruled “the progression of the prosecution was out of the State’s control.”[486] But those rulings, in Justice Sotomayor’s view, were incorrect. Quoting Barker, “even a more ‘neutral reason’ for a delay such as ‘overcrowded courts’ should be weighed against the State, because ‘the ultimate responsibility for such circumstances’ lies squarely with the state system as a whole.”[487] Quoting Brillon, “‘systemic breakdown in the public defender system’ could also be charged to the state.”[488] Louisiana’s failure to adequately fund Boyer’s defense should have been no bar to consequence. States “routinely make tradeoffs in the allocation of limited resources” and “bear the consequences of these choices.”[489] Louisiana had a funding crisis long before Hurricanes Katrina and Rita. “Boyer’s case appears to be illustrative of larger, systemic problems in Louisiana.”[490] On at least the factor of reason for delay, responsibility weighed against the state.
Justice Sotomayor seemed poised to call out systemic breakdown in Boyer’s case regardless of the state’s intention, holding the Pelican State responsible for its constitutional violations and accountable to its budget choices. Without a majority opinion, however, the Supreme Court chose to ultimately remain silent. Since Justice Ginsburg offered the systemic breakdown caveat in 2009, this case is the closest the Court has gotten to meaningfully revisiting the issue of systemic breakdown. It remains to be seen whether this Court will take up the issue any time soon.
What needs to occur is a Brillon clarification. The Supreme Court must offer lower courts and state courts guidance to better protect criminal defendants’ speedy trial rights. Some may argue the lack of a clear definition offers states flexibility to define the term, and a Supreme Court decision may make matters worse. But what the above cases in Parts II and III demonstrate is that there needs to be a lower, enforceable ceiling, below which permissible delay may exist but impermissible delay cannot. Barker and Brillon do not establish a ceiling; they enable courts like in Camacho and Weis to excuse absent or inadequate counsel and manifest years of delay. Interpreting Justice Sotomayor’s reasoning, her dissent would have been a step closer to coloring systemic breakdown analysis, had it become law.
For those wary of the current Supreme Court’s propensity for decisions hostile to criminal defendants,[491] the speedy trial right is fundamentally different from the other enumerated constitutional protections for the accused.[492] The speedy trial right has coexisting benefits for both the defendant and society. Both benefit from speedy trials immensely: They reduce pressure on courts and court resources, reduce citizen tax expenditures, and incentivize swift and deliberate justice.[493] This pivotal understanding offered by the Court fifty years ago in Barker still remains true and could influence the Court to think beyond politics.[494]
B. Empower Indigent Criminal Defense
1. Adequately Fund and Support Public Defenders
The government’s lack of funding is not a viable excuse for its perpetual miscarriage of justice. This is a question of priorities.[495] Either we fulfill our constitutional obligations or the state pays the consequences as Justice Sotomayor suggested in Boyer. Ultimately, indigent criminal defense should receive greater funding to meet demand and the ideals that Gideon represents. Public defenders should receive adequate resources to protect and vindicate the rights of all criminal defendants, including the indigent. Adequacy means, at base, enough attorneys, enough funding for investigations, enough funding for training, and enough funding for experts.[496] Decades, generations even, of practitioners have added their drops of advocacy so that justice may flow and be funded—this Note adds its voice to this cauldron.
On the flipside, states could reduce resource pressure by complying with federal case limit standards. In 1973, the Department of Justice’s National Advisory Commission on Criminal Justice Standards and Goals set caseload standards that public defenders handle annually no more than 150 felony, 400 misdemeanor, 200 juvenile, or 200 mental health cases, or 25 appeals.[497] These standards have been in place for over fifty years, yet most county and state offices fail to meet them. In 2011, 73 percent of county-based public defender officers lacked the attorneys to meet these standards.[498] State public defender programs had a median of 67 percent of the number of attorneys necessary to meet the guidelines.[499] Such high caseloads create time and attention constraints, elongating pretrial detention and ensuring constitutional deprivation. Seattle’s Defender Association, an independent, nonprofit public defender organization, set early caseload limits that were close to national and state bar standards.[500] Other states like Louisiana, Montana, Colorado, and Massachusetts have instituted caseload limits through state statute, statewide commissions, and private bar participation.[501] Coalitions of researchers and practitioners are currently working to redefine the public defender workload to reflect a prescriptive reality.[502]
Some would argue pay parity, caseload limits, and rigorous training requirements are futile without greater systemic change, and that the ultimate remedy should be to deconstruct the criminal justice system to no longer require so many public defenders and so many prosecutors.[503] Increasing access to counsel without a fundamental change in how counsel wade through the law, without a fundamental change to how the law is administered to punish people, and without a fundamental change to the law’s targets and consequences will only exasperate the problems requiring counsel in the first place.
I do not disagree with this argument, but we must look at the world we have. Adequate defense can reduce wasteful incarceration. Just one less day in jail could mean the prevention of someone’s life being destroyed. As was imagined by the Framers, a speedy trial is conducive to an ordered liberty, and the absence of counsel leads to extended pretrial detention. Though it would be better for there to be no defendants and fewer people needing to commit crimes, in a world where there are defendants, it is better they have competent, adequate lawyers than not.
2. Empower and Incentivize Public Defenders to Make Their Record
Public defenders should not have to opine on their offices’ inadequacies. Though, doing so is helpful and does not necessarily reflect on the public defender’s inadequacy—just the state’s or county’s. Public defenders should ultimately be empowered to build a record that helps their clients win their motion to dismiss for violation of their right to speedy trial in trial court or on appeal. Vasquez and DeCasas are examples of public defenders being honest about who and what is at fault for their clients’ constitutional violations amid the trek to trial, even when that honesty puts their own bar licenses at risk. Internal mechanisms in a public defender’s office could prevent this risk from occurring. According to the Model Rules of Professional Conduct, the legal profession’s rulebook, an attorney with too heavy a caseload must ask an attorney supervisor to reassign their cases to another attorney.[504] But public defenders, like nearly all employees—government or otherwise—are not incentivized to ask their boss to lower their workload. If there is too much work to go around and everybody is overworked, requesting a lower workload may reflect poorly on the attorney’s ability, desire to be a team player, and situational awareness. Public defenders are “constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules.”[505] Internal procedures may need to change so that public defenders in any state or county are empowered to testify honestly about their own and their office’s capacity to adequately represent clients.[506] Public defenders, like Santiago in Vasquez and DeCasas who testified about the open secrets of the Los Angeles County Public Defender’s Office, should not have to fear losing their bar licenses to defend their clients.
3. Public Defenders Should Organize
Public defenders should be empowered to organize themselves to advocate for wages commensurate with their work. Not only is this in their own best interest but also in the best long-term interests of their clients and the profession. Public defenders were once imagined having the same wages as their prosecutor counterparts,[507] and some states and counties have implemented such policies.[508] But other public defenders must fight for their wages. As noted, Sacramento County public defenders and prosecutors, nearly four hundred criminal attorneys, walked off the job in August of 2024 to protest their wages and workload.[509] In some states like California, state statutes provide explicit permissions for public-sector unions to form.[510] Other states do not, citing some of the same justifications as the Supreme Court did in FTC v. Superior Court Trial Lawyers Ass’n,[511] where the Supreme Court upheld the Federal Trade Commission’s bar against federal Criminal Justice Act attorneys commencing strikes to protest their salaries.[512] In Colorado in 2022 there were no state laws on point, but public defenders took a chance and formed the Defenders Union in Colorado (DUC).[513] Fortunately, Colorado’s legislature and governor were receptive. With the formation of this union, Colorado’s public defender services are seen as a national exemplar, though more work must be done.[514]
It is important to investigate whether public defenders can organize to improve working conditions. But should they? At least in the short term, it is not hard to imagine that refusing to take cases makes indigent defendants worse off, worsening their chances of receiving justice and potentially elongating the very dilemma this Note seeks to address. Though there are short-term downsides, the ultimate long-term goal of organizing is to provide a better future for the indigent criminal defendants navigating this system and the public defenders steering their vessel. Otherwise, things may never change. In 2022, the Minnesota Public Defenders walked this tightrope when they filed their intent to strike.[515] When their strike commenced, it was not as if they stopped working entirely; instead, public defenders fulfilled their ethical obligation under the Model Rules of Professional Conduct and sought Minnesota court approval to withdraw. This was done with their clients’ interests at the center. Without adequate pay and reasonable workloads, public defenders cannot ever represent their clients zealously, perpetuating a cycle of mismanagement. As with all efforts to organize, avoidance of short-term pain does not justify long-term, systemic decay.[516]
An alternative to strikes is to completely overrun and collapse the system by organizing clients to refuse plea deals. This is an idea explored by prison-rights activist Susan Burton, picked up and expanded by Michelle Alexander, and has since been a mostly theoretical response to public defenders’ plight.[517] The idea being an overran court will have no choice but to sua sponte[518] dismiss cases with scant evidence or less-serious alleged offenders. There are some strategic strengths and weaknesses to this approach in contrast to strikes.
One strength is that defendants retain representation. As opposed to refusing clients, public defenders would ensure that each and every client has their day in court—a fulfillment of justice, in a sense. One drawback is that trials are not always the best option. Trials are long, cumbersome, and difficult, with outcomes determinable by twelve individuals. They are a gamble. And even if public defenders successfully overrun an underfunded system, who is to say that public defenders would even be the beneficiaries of renewed, increased funding? Instead of making structural changes, states and counties could retain a cycle of mishaps: Defendants pressure the system, prosecutors drop charges en masse, and the cycle repeats without public defenders receiving an additional dime.
Still, mass demands for trial have resulted in justice. For instance, protests in Washington, D.C., against Donald Trump’s first inauguration on January 20, 2017, resulted in over 230 arrests.[519] Protesters faced years in prison for felony conspiracy. The year prior, the D.C. court system conducted a total of 226 jury trials.[520] Organized, the January 2017 protestors launched a joint defense strategy and 210 of the 230 protesters demanded trials all at the same time, bottlenecking and clogging the D.C. courts.[521] All 210 protesters that demanded trials not only went free with charges dismissed, but the prosecution was under investigation for withholding exculpatory evidence.[522] Washington, D.C., had to pay $1.6 million to the protesters to settle a civil rights lawsuit.[523] This is not an isolated example.[524]
Public defenders must do what they can, both in court and outside court, to improve their clients’ circumstances. This can mean organizing to strike. This can also mean organizing to meet with their state legislatures and county board of supervisors. In Washington, D.C., public defenders insert themselves into the policy-making process, testify as experts, sit on committees, and even help write legislation.[525] The Defender Association in Seattle initiated the Racial Disparity Project to examine and address racial discrimination in arrests for driving with a suspended license.[526] And though reliance on the whims of private interests is an archaic system that government-provided legal representation was supposed to upend, public defenders have argued that a partial return to a mixed private funding model may be necessary as a stop-gap measure.[527]
C. Categorize Public Defenders as State Actors
The other side of Brillon remains: Public defenders are not considered state actors despite their public employment. This was wrong, and instead of upholding the Dodson precedent, the Brillon Court should have recognized the larger problem that it reinforced.[528] In Brillon, Justice Ginsburg extended Dodson’s logic, finding that since public defenders are agents of the defendant, any delay caused by public defenders must be attributed to the defendant. Justice Ginsburg’s named concerns were that (1) if public defenders were instead categorized as state actors, their delay, whether intentional or not, would be without consequence and (2) repeated delay requests would lead to judges’ elevated skepticism about the underlying necessity of those requests.[529]
These concerns, though forceful in theory, are less concerning in practice. Public defenders do not operate in a vacuum, and judges are still bound to enforce their Rules of Court, which require a showing of good cause. Justice Ginsburg cited neither precedent nor empirical study for her prediction that public defenders would be unaccountable if considered state actors. Thus, whatever predicted loss of accountability that public defenders would have experienced if considered state actors (whose delays are the state’s responsibility) is stopgapped by several existing measures: public defenders’ duty to the court, their duty to their client, and their desire to perform adequately for their own sake.
Second, Justice Ginsburg mistook a solution for a problem when she warned of judges’ elevated skepticism to defender delay. Judges should be skeptical. Notwithstanding that skepticism, though, requested delays and continuances should be evaluated for good cause. If this practice were the case, and good cause findings were enforced, then there need not be discrepancy in a judge’s discretion whether the attorney is publicly or privately employed. If a public defender were a state actor, what differentiates them at that point from a prosecutor, who is also a government employee, and who also at times must request continuances? Ginsburg inflated the public defender’s adversarial nature into a disqualifying distinction, when in fact, it makes little difference. These stop-gap measures counter the Court’s concerns.
Overturning Dodson would also mean that public defenders would be subject to suit under § 1983, providing another check on Justice Ginsburg’s concerns. These suits would force the nation to explore the extent to which a state’s or county’s inadequate funding constitute violation of an indigent defendant’s constitutional rights. In this situation, it could be argued that, like judges and prosecutors, state public defenders in their official capacity are protected by state sovereignty.[530] Or like local police officers, local public defenders would be protected by some form of qualified immunity, forcing the public defender office, city, or state to pay monetary sums or be enjoined by the court.[531] The costs and benefits of these routes are beyond the scope of this Note but should have been considered by the Supreme Court.
The more palpable concern left unrecognized by the Brillon Court is the split allegiance that could result from public defenders being both a defendant’s agent but also a state actor, answerable to two adversaries.[532] This could create mistrust with the client, probably the most pressing concern for a well-meaning public defender. But no true change would manifest when measured against reality. Public defenders are already state or local government employees, whose budgets are controlled and manipulated by the government they are adversarial to. Public defenders are already subject to the same ethical rules of candor to the court as prosecutors are. And clients already see public defenders as cogs in the same criminal legal system that subjects them to delay as consequence of poor resources; often an obstructionist cog, or a cog that can claim some rhetorical independence, but a cog nonetheless.[533] State actor classification would formalize an existing symbiosis yet improve the situation by introducing more punishment against public defender offices and the counties and states funding them. Repeated injunctions and payouts under § 1983 against state and local governments could facilitate necessary, plentiful public defenders with adequate resources to stop the bleeding upstream.
Justice Blackmun in Dodson recognized the larger problem that Justice Ginsburg minimized in Brillon: There are not enough public defenders and all of society is worse off for it.[534] Public defenders are pressured by their extraordinary caseloads to make value judgments about people’s lives; courts are forced to acquiesce; defendants are then forced to choose between their fundamental rights, supposedly guaranteed to them by the Sixth Amendment, risking years of life or their innocence. Justice Blackmun called to our attention that public defenders are treated differently, even poorly, and that created the constitutional crisis that was before the Court.[535] The Dodson and Brillon majorities made the problem worse. Overturning their decisions would go far to address fundamental concerns in the public defender system.
Dodson as it currently stands may not be an absolute bar against local and state government lawsuits for inadequate defender services, however. Post-Gideon and Dodson, defense advocates have brought suit against municipalities for their lack of criminal defense funding. Vidhya Reddy discusses how some of the first claims against local governments post-Gideon for inadequate defender pay were under the Fifth Amendment’s Takings Clause, contending that “representational services were property” and being forced to provide services without pay or with low pay were a constitutional violation.[536] Some of these suits incorporated the theory that inadequate compensation led to inadequate representation, convincing some courts that it was the state’s responsibility to bear the expense of indigent criminal representation.[537] Other suits prompted the creation of statewide public defender systems to replace the court’s interim reforms.[538] As of this writing, in Oregon there brews a class action battle against the Beaver State’s indigent defense system that forced thousands of defendants to wait months for public defenders.[539]
The decade after Dodson featured many state courts contemplating prospective relief in postconviction claims. In 1984, the Arizona Supreme Court sua sponte took up system-wide deficiencies and created a rebuttable presumption of ineffectiveness to be applied prospectively if the legislature failed to make reforms to bring Mohave County into national and ABA conformity.[540] Eventually in the early 1990s, a wave of injunction-centered § 1983 class action lawsuits began to pop up across the country,[541] alleging indigent defendants were systematically denied constitutionally adequate assistance of counsel.[542] None of these suits resulted in an injunctive order, but several reached settlement. In Stinson v. Fulton County, for example, the Southern Center for Human Rights sought declaratory and injunctive relief against the county where misdemeanor defendants “remained in jail without counsel for a period longer than could have been imposed if they had been convicted and sentenced to the maximum penalty for the offense.”[543] The county responded by voluntarily adopting a pretrial services program “consisting of officers responsible for assigning counsel to indigent defendants.”[544] This settlement and others prompted the Georgia State Legislature to pass the Georgia Indigent Defense Act in 2003, creating a statewide indigent defense system.[545]
Or take Allegheny County, Pennsylvania. In 1996, National and Pittsburgh ACLU chapters in conjunction with Attorney Claudia Davidson filed Doyle v. Allegheny County Salary Board,[546] a class-action suit on behalf of all present and future indigent criminal defendants in the county. The lawsuit sought injunctive relief to bring the county into existing statutory and constitutional obligations at a time when the county was “one of the most deficient in the nation” in terms of public defense resource levels, which was further lowered that same year by a newly elected county commissioner administration.[547] After the state’s initial procedural attacks failed, it agreed to settle on the eve of trial.[548] Under the settlement, the county agreed to increase funding and staffing levels, adopt policies and procedures aligned with national standards, adopt and expand training programs, and adopt temporary resource parity between the county public defender office and district attorney’s office.[549] Critically, the agreement was written to ensure the court’s jurisdiction, and a court-appointed consultant ensured compliance.[550] Subsequent complaints by indigent clients—that they had met their public defenders only minutes before trial, counsel failed to prepare for hearings, and counsel waived defendants’ rights to preliminary hearings without the clients’ consent—prompted the county’s submission to further consent decrees and supervision.[551]
These examples show the possibility and success of injunctive suits under § 1983, which should be explored. They should also be contrasted from Polk County v. Dodson, which was held on narrower grounds. Dodson alleged that his individual public defender violated his constitutional rights by withdrawing from his case. The Court ruled that a “public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”[552] The Court further dismissed Dodson’s claims against the Polk County Offender Advocate’s Office, the Polk County Board of Supervisors, and Polk County itself because his claim rested on a respondeat superior theory of liability, which was barred by precedent.[553] In contrast, though the above examples were never brought to trial, the plaintiffs’ claims against Fulton County, Georgia, and Allegheny County, Pennsylvania, would have survived despite Dodson because the plaintiffs claimed these counties acted under color of state law to deny them counsel and counsel services entirely.[554]
One case to look to for further guidance would be Madrid v. Gomez,[555] authored by Judge Thelton Henderson of the Northern District of California. Though not regarding public defenders, the § 1983 violations he found in California’s prison system in the 1990s provide analogous circumstances upon which litigants and attorneys could build their case against the state for speedy trial right violations. In Madrid, the court uncovered “systemic, unremedied deficiencies in the [prison] system for delivering health care at Pelican Bay which render[ed] that system incapable of meeting inmates’ serious medical needs.”[556] This failure, caused in part by inadequate healthcare funding at Pelican Bay Prison, permeated into delayed prisoner healthcare services, insufficient officer and doctor training, inadequate recordkeeping, deliberate indifference, and prisoner deaths.[557] Today, pretrial defendants, innocent until proven guilty, are forced to sacrifice months or years of their lives in often overcrowded jails waiting for an overworked public defender to visit their jail cell and learn the case before trial begins. These cases house unimaginable constitutional deprivations. Both the unconscionable pretrial delay and the grotesque conditions of inmates left without adequate medical care are the result of the state’s failure to adequately fund services for those most at the mercy of the state’s power. Madrid stands as an analogous model for litigants to bring their § 1983 claims against the government’s inadequacy.
Categorizing public defenders as state actors would have far-reaching implications; most apparent of them would be how public defenders would see themselves. But such a categorization would not change the reality much and could expand the number of remedies available to criminal defendants. Cases that have bitten around the edges of § 1983 in similar circumstances offer evidence and models of how these suits could not only be successful but also facilitate broad-sweeping changes in the public defender system. Lack of state-actor status forecloses these possibilities.
D. Procedural Changes: Big and Small
Russell v. Denmark also highlighted problems with procedure. Federal statutes like AEDPA[558] hamstring federal courts from reviewing error in habeas corpus petitions. Most of these habeas corpus petitions originate in state court, where most criminal offenses are adjudicated. In the context of especially heinous crimes, like terrorism and capital offenses, the stakes are highest and the need for review is strongest. AEDPA backwardly prevents that review of defendant habeas corpus claims that make their way to federal court by providing near-total deference to state courts to develop and make holdings upon the trial record even when that reviewing state court has made a mistake of law or fact.[559] As was the case in Russell, AEDPA prevents de novo review even when it is clear that the record was insufficient due to the state judge’s, prosecutor’s, or defense counsel’s shoddy work. This problem is especially apparent when a public defender does not have time to argue the appropriate motions, make necessary objections, and develop a court record that reflects the circumstances they and their clients are experiencing.[560] The court deciding whether to grant habeas petitions is barred from recognizing mistakes made by the state courts (like those regarding inadequate counsel as they were in Russell), and reviewing courts like the Fifth Circuit Court of Appeals will have no choice but to overturn district court decisions. This reality makes it near impossible for defendants, often writing their own motions under prison conditions, to succeed on a speedy trial right violation claim. Even if AEDPA is a procedural mainstay in federal courts, its use should be further criticized on speedy trial grounds.
Getting rid of AEDPA is a big fish; so is changing courts’ approaches to granting continuances. Public defenders are allowed to seek continuances and delays to their cases with a judge’s permission if the reason rests upon a showing of good cause. But what passes for good cause can also be seen as acquiescence to government underfunding. Good cause should not mean the court must acquiesce to the government underfunding the criminal legal system. Instead, such showings of acquiescence should be seen for what they are: systemic breakdown. Governments should be held responsible.
Critiques can be thrown against the federal government’s 1974 Speedy Trial Act (STA)[561] as well, which controls federal trial actors’ actions when adjudicating a federal defendant’s case. The STA was imagined by a Congress dissatisfied with the dim lines drawn by the Barker v. Wingo court.[562] The STA in response added “teeth”[563] to Barker by setting time limits for trial and providing factors for federal judges to consider when granting continuances. But the teeth might as well have been rotten. The STA has roller-coaster loopholes, like permitting delay based on “findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.”[564] Thus, the STA and analogous state statutes must have actual bite. They must require judges not only to state the reasons for their grants of continuation upon genuine good cause but also to recognize when the ultimate source of blame for unconstitutional delay is the government.
There are also smaller things offices can do. In Georgia, Catoosa County defenders are required to meet with clients within seventy-two hours of arrest, which helped reduce the number of people incarcerated before trial.[565] The County Sheriff noticed the improvement, saying “the defendants benefit, the court system benefits, and it benefits Catoosa County.”[566] Doing the math, Catoosa County reduced its jail population from 220 to 190 on an average day, saving the county $40 per person, totaling a savings of $36,000 a month.[567] The California Legislature ran with this idea in 2023, authoring Assembly Bill 1209, which would have required counties to ensure counsel for indigent defendants within twenty-four hours of booking, though the bill stalled.[568] The Alameda County Public Defenders in California have a team of attorneys that specialize in pretrial motion practice to increase the chances of case dismissal and to discover leverage for better plea deals.[569] Such innovations are both cost-effective and catalysts for quick resolutions. More ideas at the intersection of efficiency and swift advocacy must be seen not only as helpful but desirable.
E. What Would Community-Informed Public Defense Look Like?
It is one thing to ensure public defenders define their workload to improve the criminal legal system. It may be another for the clients, victims, and community members to define it. Some may want to improve the system’s ultimate outcomes, others may want to increase public defense to improve the system, and still others may want to do away with the system and start anew. Indeed, it may be more ideal to not need public defenders in the first place, and imagine a society where prisons become obsolete.[570] Until that day comes, some public defender offices have attempted to center their practice around their indigent clients, educating the public, and providing holistic services. In recent years, the participatory defense movement has called for more involvement of defendants’ families and community members in the criminal legal process, as an additional set of humanizing advocates.[571] Washington, D.C.’s Public Defender Service (PDS) model enables its attorneys to navigate a rather manageable caseload, with investigators that conduct thorough investigations.[572] PDS has many specialty divisions to center the client and identify underlying issues that placed clients in the legal system, like mental health and rehabilitation divisions.[573] The Neighborhood Defenders Northwest in Baltimore, Maryland, places their offices in their clients’ neighborhoods; this allows for early intervention, improved access, greater information exchange, and lower costs.[574] The Bronx Defenders are the prototypical holistic, client-centered approach.[575] Teams of criminal defense, family, immigration, and civil attorneys; legal advocates; and social workers work together with the client to make decisions about the client’s priorities in their case. They also engage in systemic and policy reform and engage with the community by hosting block parties and connecting local organizations.[576] This model has been mirrored in Alameda County, California,[577] and other public defender offices across the country.
Conclusion
The current state of public defense is bleak. Courts have developed precedents that force indigent defendants to choose between their fundamental rights. That is not justice. This Note seeks to call out the problem and recognize its absurdity, providing a landscape of contextual battlegrounds where public defenders struggle to defend their clients amid overwhelming state under resourcing. Brillon was one of many Court decisions that, even if well-intentioned, failed to provide clear guidance in adjudicating this unreasonable delay perpetrated by trial court actors, leaving overworked public defenders to bear blame for that which they likely had no control over.
From this debauchery, I offer a seedling, an obstacle-turned-opportunity to provide defendants relief for this system failure. This Note makes clear that Brillon and the preceding caselaw were incorrect on several grounds and defines the systemic breakdown that the Supreme Court failed to identify. Yet from the concrete that is Brillon’s systemic breakdown caveat, this Note attempts to cultivate a rose, thorns and all: a sensible definition of systemic breakdown for courts to measure their decisions against, with an ear to the earth for public defenders’ and clients’ reality. Separate from that definition, and the lower burden of proof that would flow from it for public defenders, I also suggest a range of policy, procedural, and legal recommendations that address both the chronic underfunding of the criminal legal system, particularly indigent criminal defense, as well as many of its symptoms. Ultimately this Note seeks to shake the legal community awake to see why this constitutional crisis must matter to all of us, from the lowliest criminal defendant to the highest court in the land.
Copyright © 2026 Dominick Williams, J.D. 2025. I thank Professors Andrea Roth, Diana Reddy, and Talha Syed for their invaluable feedback. I thank Shaylana Cleveland, Alexia Mayorga, and Chesa Boudin for their perspectives on the front lines. Thank you to Ariane Walter, Meelissa Tapia-Cortez, Maria Kollaros, Cassidi Magnuolo, Isabella Mauceri, Rosie Rios, Idil Delmas, Joanna Ong, Gunn Jiravuttipong, Mitchell Garmany, and CLR for their feedback and encouragement. All errors are my own.
[1]. U.S. Const. amend. VI.
[2]. See Powell v. Alabama, 287 U.S. 45, 71 (1932) (holding that it is the court’s duty to assign counsel to indigent defendants “as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case”).
[3]. There are many problems with indigent criminal defense that span beyond nonadherence to the right to counsel and the right to a speedy trial, even beyond the Sixth Amendment’s enforcement. My hope is to highlight how decades of underfunding have shredded our expectations of swift and deliberate justice primarily rooted in the Sixth Amendment’s right to a speedy trial.
[4]. Of the approximately six hundred thousand people sitting in U.S. jails every year, the average stay is thirty-two days. Zhen Zeng, Jail Inmates in 2023 - Statistical Tables (2024), https://bjs.ojp.gov/library/publications/jail-inmates-2023-statistical-tables/web-report [https://perma.cc/FJ3V-6XAY]. At least in the federal system, roughly 98 percent of defendants never go to trial, either because charges are dropped or the defendants take a plea. John Gramlich, Fewer than 1% of Federal Criminal Defendants Were Acquitted in 2022, Pew Rsch. Ctr. (June 14, 2023), https://www.pewresearch.org/short-reads/2023/06/14/fewer-than-1-of-defendants-in-federal-criminal-cases-were-acquitted-in-2022/ [https://perma.cc/U37U-A2F7]. But if a defendant refuses to take a plea and goes to trial, their wait can be much longer depending on the complexity of the case. See, e.g., Robert Lewis, Waiting for Justice, CalMatters (Mar. 31, 2021), https://calmatters.org/justice/2021/03/waiting-for-justice/ [https://perma.cc/6WMQ-NK64] (finding in 2021 in California that “at least 1,300 people have been incarcerated in California’s jails longer than three years without being tried or sentenced”).
[5]. Vermont v. Brillon, 556 U.S. 81, 90–91 (2009) (citation omitted).
[6]. See id. at 92 (“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 General’s office is indeed ‘part of the criminal justice system,’ the individual counsel here acted only on behalf of Brillon, not the State.”).
[7]. See Chesa Boudin & Eric S. Fish, Defense Lawyers and the Separation of Powers, 60 Wake Forest L. Rev. 509, 532 (2025) (“Incompetent defense lawyers are a source of convenience for judges, because they dispose of cases more efficiently than lawyers who litigate.”).
[8]. See id.
[9]. This Note will primarily focus on state and county public defenders rather than federal public defenders, since state and county jurisdictions are where the bulk of criminal proceedings and trials occur. This is also where systemic issues are concentrated. This Note should not be read as approving of the federal system’s funding structure or procedures when it comes to indigent criminal defendants. As one scholar notes,
despite the federal-defender system’s strong reputation relative to that of state and local systems, it has always faced challenges. The U.S. Department of Justice (“DOJ”)’s Bureau of Justice Statistics estimates that 88% of federal criminal defendants with indigent counsel who are found guilty receive jail or prison sentences, while only 77% of federal criminal defendants with private counsel who are found guilty receive jail or prison sentences. In 2011, the median time it took to dispose of a federal criminal case by jury trial was 15.7 months. Although better resourced than state systems, federal criminal defense appears significantly less effective than its private counterparts, and the system as a whole takes staggeringly long times to dispose of cases.
Emily Rose, Speedy Trial as a Viable Challenge to Chronic Underfunding in Indigent-Defense Systems, 113 Mich. L. Rev. 279, 283–84 (2013).
[10]. See, e.g., Breaking: ACLU Sues Kern County for Operating Plea Mill, ACLU S. Cal. (May 8, 2023), https://www.aclusocal.org/en/press-releases/breaking-aclu-sues-kern-county-operating-plea-mill [https://perma.cc/6P8G-4P43] (“The lawsuit describes a fast-track plea mill where probation officers play a prosecutorial role well outside their statutory authority—making plea offers to poor defendants behind closed doors, typically without defense counsel or prosecutors present. Judges then accept these uncounseled pleas in arraignments that often last less than three minutes.”); ACLU Sues Over Failing Public Defense System in Fresno County, California, ACLU N. Cal. (July 15, 2015), https://www.aclu.org/press-releases/aclu-sues-over-failing-public-defense-system-fresno-county-california [https://perma.cc/GXX7-DS6F] (“As detailed in the complaint, six years have passed since the head of the Public Defender’s Office alerted the Fresno County Board of Supervisors that the office was severely limited in its ability to provide ‘competent and effective representation,’ and two years have passed since the union from the Public Defender’s Office warned that public defenders are jeopardizing their clients’ constitutional rights ‘on a daily basis.’ Even the Fresno County District Attorney has decried the public defense system’s lack of funding, saying it bogs down the entire justice system.”).
[11]. See Michelle Alexander, Opinion, Go to Trial: Crash the Justice System, N.Y. Times (Mar. 11, 2012), https://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice-system.html [https://perma.cc/3PSU-YU9X] (“The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation.”).
[12]. See Coleman v. Thompson, 501 U.S. 722, 753 (1991) (“Attorney ignorance or inadvertence is not ‘cause’ because the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error.’”).
[13]. Several scholars have discussed how the public defender institution should be structured. See generally Boudin & Fish, supra note 7; Irene Oritseweyinmi Joe, Structuring the Public Defender, 106 Iowa L. Rev. 113 (2020); Eve Brensike Primus, Defense Counsel and Public Defence, in Reforming Criminal Justice: Pretrial and Trial Processes 121, 121–45 (2017). Part of my argument is that regardless of whether the court appoints the public defender or they are employed in an independent office, “[t]he delivery model is less important than ensuring that whichever model is chosen meets the constitutional parameters set out by the U.S. Supreme Court – the early appointment of qualified and trained attorneys who have sufficient time and resources to provide effective representation under independent supervision.” Sixth Amend. Ctr., https://6ac.org/ [https://perma.cc/8ED3-TPM3]. Tantamount to achieving this, I will argue, is classifying public defenders as state actors so their employers, the state, may be held to account for the delay public defenders facilitate.
[14]. See 372 U.S. 335, 344 (1963). Justice Black in his majority opinion remarked:
Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. . . . That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.
Id.
[15]. See 556 U.S. 81, 94 (2009).
[16]. Id.
[17]. See id. at 86–89 (“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, 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.’” (citation omitted)).
[18]. By “potentially” oppressive, one need only point to the growing anticriminal sentiments over the last several decades marked by the War on Crime in the 1960s and 1970s to the War on Drugs spilling into the 1980s, peaking in the “era of mass incarceration” in the 1990s and lingering to this day. See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012) (detailing the causes and effects of growing American prison populations over the decades).
[19]. See 407 U.S. 514, 530 (1972). The four factors are length of delay, reason for delay, assertion of the right, and prejudice to the defendant. Id. at 530–32. Barker and its factors will be discussed more in Part II.A.
[20]. See 454 U.S. 312, 318 (1981).
[21]. See 556 U.S. 81, 94 (2009).
[22]. Darrel Smith, Sacramento County DAs, Defenders Will Walk off Their Jobs after Labor Talks Stall. When Is Strike?, Sacramento Bee (Aug. 16, 2024), https://www.sacbee.com/news/local/article291121380.html [https://perma.cc/K7ZM-NLU7].
[23]. Id.
[24]. Id.
[25]. Id.
[26]. Id.
[27]. Loc. 148, L.A. Cnty. Pub. Defs. Union, https://local148.org/ [https://perma.cc/EFK4-4F24].
[28]. Specific instances of Los Angeles County’s problems will be discussed in Part III.
[29]. David Popoola, Minnesota Public Defenders’ Strike and the Power of Public Defenders’ Collective Action, Onlabor (May 6, 2022), https://onlabor.org/minnesota-public-defenders-strike-and-the-power-of-public-defenders-collective-action/ [https://perma.cc/Y2WV-8DNE].
[30]. See Kiyomi Bolick, Harnessing Union Power for Public Defense, Inquest (Mar. 16, 2023), https://inquest.org/harnessing-union-power-for-public-defense/ [https://perma.cc/UKT6-K8UU].
[31]. See Sixth Amend. Ctr., supra note 13.
[32]. The median entry-level salary for public defenders was $69,600; $90,000 for attorneys with five years of experience; and $106,900 for those with eleven to fifteen years of experience. NALP Bulletin+, NALP’s Public Service Attorney Salary Survey Shows Pay Remains Lowest at Civil Legal Services Organizations, Nat’l Ass’n for L. Placement, Inc. (May 2024) https://www.nalp.org/0524research [https://perma.cc/URE6-LEMU].
[33]. Just. Pol’y Inst., System Overload: The Costs Of Under-Resourcing Public Defense 8 (2011) [hereinafter System Overload].
[34]. Irene Oritseweyinmi Joe & Ben Miller, When Every Sentence is a Possible Death Sentence: Public Defenders Speak from the Front Lines about Covid-19 26–27 (2020).
[35]. Id. at 3.
[36]. See Richard A. Oppel Jr. & Jugal K. Patel, One Lawyer, 194 Felony Cases, and No Time, N.Y. Times (Jan. 31, 2019), https://www.nytimes.com/interactive/2019/01/31/us/public-defender-case-loads.html [https://perma.cc/VP9U-KR8L].
[37]. See Samantha Jaffe, Note, “It’s Not You, It’s Your Caseload”: Using Cronic to Solve Indigent Defense Underfunding, 116 Mich. L. Rev. 1465, 1475–76 (2018).
[38]. Nat’l Right To Couns. Comm., Constitution Project, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel 6–7 (2009) [hereinafter Justice Denied], https://www.opensocietyfoundations.org/publications/justice-denied-americas-continuing-neglect-our-constitutional-right-counsel#publications_download [https://perma.cc/J4Y8-5PN4] (“Over the last 25 years, spending on public defense has increased, but it remains far below other criminal justice expenditures, including corrections and police protection.”).
[39]. See People v. DeCasas, 54 Cal. App. 5th 785, 796–97 (2020); People v. Superior Ct. (Vasquez), 27 Cal. App. 5th 36, 48 (2018). See generally ABA Standing Comm. on Legal Aid & Indigent Defs., Gideon’s Broken Promise: America’s continuing Quest for Equal Justice, (2004) [hereinafter Gideon’s Broken Promise], http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_bp_right_to_counsel_in_criminal_proceedings.authcheckdam.pdf [https://perma.cc/MF5D-873V] (reporting on the state of indigent criminal defense); Justice Denied, supra note 38, at 6–7; Alexander, supra note 18; Erwin Chemerinsky, Lessons from Gideon, 122 Yale L.J. 2676 (2013) (arguing for additional safeguards to uphold adequate counsel for indigent defendants).
[40]. Russell v. Denmark, 528 F. Supp. 3d 482, 495 (S.D. Miss. 2021) (“Russell was arrested on December 21, 2006; indicted on August 16, 2007; arraigned on November 9, 2007; and brought to trial on January 27, 2009. For these 768 days, Russell, cloaked with the presumption of innocence, remained jailed at the Hinds County Detention Center.”).
[41]. People v. Williams, 58 Cal. 4th 197, 241 (2013) (holding after a seven-year delay that “the lion’s share of delay resulted from defense counsel’s lack of progress in preparing this case for trial” and not “from a ‘systemic “breakdown in the public defender system”’”).
[42]. Camacho v. Superior Ct., 15 Cal. 5th 354, 392 (2023) (holding that a delay of nineteen years offered “little reason” to apply a “presumption of trial prejudice” because the defendant was a sexually violent predator under California law and committed to a mental institution rather than a prison).
[43]. Doggett v. United States, 505 U.S. 647, 652 n.1 (1992) (“Depending on the nature of the charges, the lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.”).
[44]. See Barker v. Wingo, 407 U.S. 514, 533 (1972) (finding defendant Barker’s speedy trial right had not been violated after six years of delay because his defense was not adequately prejudiced, despite the Court conceding the prejudice he experienced “by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility”).
[45]. System Overload, supra note 33, at 17 (citing Tracey Kyckelhahn, Justice Expenditure and Employment Extracts 2007 – Revised tbl. 1 (2012), https://bjs.ojp.gov/library/publications/justice-expenditure-and-employment-extracts-2007-revised?iid=4332&ty=pbdetail [https://perma.cc/AQV3-H9DA]).
[46]. See id. at 18 (“[A] study conducted by the NAACP Legal Defense Fund attempted to document some of the ‘social costs’ of Mississippi’s inadequate public defense system by surveying over 30 women who were incarcerated for nonviolent offenses. They found that nearly half of the women lost a home or apartment, while 12 lost vehicles. More than half of the women had children living with them when they were arrested and had to move in with relatives. Eight women had elderly parents who were affected financially.”).
[47]. Id. at 19.
[48]. See id.
[49]. Brief of Amici Curiae Vermont Network Against Domestic and Sexual Violence et al., in Support of Petitioner at 27, Vermont v. Brillon, 556 U.S. 81 (2008) (No. 08-88).
[50]. Id. at 4.
[51]. U.S. Const. amend. VI (emphasis added).
[52]. Stephanos Bibas & Jeffrey L. Fisher, The Sixth Amendment, Nat’l Const. Ctr., https://constitutioncenter.org/the-constitution/amendments/amendment-vi/interpretations/127 [https://perma.cc/3TBX-HWWF].
[53]. See People v. Williams, 58 Cal. 4th 197, 217 (2013) (quoting the trial judge as stating “the constitutional right to have a competent attorney, in this Court’s opinion, far outweighs the constitutional right to a speedy trial . . . .”).
[54]. See Paul Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176, 2178–79 (2013) (“As I explain later, however, Gideon bears some responsibility for legitimating these developments and diffusing political resistance to them. It invests the criminal justice system with a veneer of impartiality and respectability that it does not deserve. Gideon created the false consciousness that criminal justice would get better. It actually got worse. Even full enforcement of Gideon would not significantly improve the wretchedness of American criminal justice.”).
[55]. Sara Mayeux, Free Justice: A History of The Public Defender In Twentieth-Century America 50 (Heather Ann Thompson & Rhonda Y. Williams eds., 2020) (“In 1917, the New York bar introduced just such a private alternative to the public defenders . . . an experimental ‘Voluntary Defenders Committee’ to provide legal representation for selected defendants in the Manhattan criminal courts.”).
[56]. Id. at 34 (explaining how private criminal attorneys “[t]rawling courtrooms in search of potential clients and offering jail guards a cut of their legal fees had become standard ways for lawyers to drum up criminal business”); see Shaun Ossei-Owusu, The Sixth Amendment Façade: The Racial Evolution of the Right to Counsel, 167 U. Pa. L. Rev. 1161, 1177 (2019) (“In their advocacy for public defender institutionalization, the broader Progressive Era reform community also emphasized shysters’ exploitation of poor, uneducated, ethnic white immigrants.”). Both Ossei-Owusu and I acknowledge the history of the word “shyster” in which it was used to describe Jewish immigrants and attorneys in an antisemitic fashion, not just to describe the era of criminal defense I discuss here. This is an ugly history. For clarity, I use this word to articulate “visions of improving indigent defense that [a]re more concerned with ethics than race,” Ossei-Owusu, supra, at 1174, where the word means a dishonest person who uses unscrupulous methods, and to draw contrast from an era in which such behavior exuded from much of the legal community—not from any particular race or ethnic group.
[57]. See Mayeux, supra note 55, at 31 (“In the 1890s, . . . Manhattan’s low-level criminal courts—and the nearby downtown jail, ‘the Tombs’—still operated as they had for much of the nineteenth century: essentially as a free-for-all bazaar where money changed hands in exchange for freedom, rights, privileges, decisions of law, and verdicts of innocence. The Tombs replicated, in grotesque caricature, the unregulated free market championed by corporate tycoons and their political sponsors.”).
[58]. See Vidhya Reddy, Indigent Defense Reform: The Role of Systemic Litigation in Operationalizing the Gideon Right to Counsel 4 (Wash. U. L. Working Paper, Paper No. 1279185, 2008), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1279185# [https://perma.cc/79RW-XY9X] (“Prior to the twentieth century, most state legislatures were largely uninvolved in the provision of indigent defense counsel. Because the provision of counsel was largely discretionary and only rarely mandated by state statute, counsel was generally expected to provide indigent defense without compensation and, often, without even being reimbursed for expenses incurred in the representation of indigent defendants.”). See generally Nancy Albert-Goldberg & Marshall J. Hartman, The Public Defender in America, in The Defense Counsel 86 (William F. McDonald ed., 1983) (analyzing public defender issues related to funding, attorney workloads, and structural independence).
[59]. Before Gideon, in some larger cities in the United States, attorneys from “white shoe” law firms would donate their time to a criminal defendant of their bar’s choosing. These volunteer apparatuses relied on inconsistent donations from private donors and chose defendants the attorneys or organization believed deserved justice, often reflecting stories and characteristics that the lawyers were more comfortable with. See Mayeux, supra note 55, at 50 (“The voluntary defender experiment neither depended upon nor aspired to the ‘new system of criminal procedure’ imagined by advocates of the public defender. Rather, it furnished privately donated counsel for the poor within the existing procedures.”).
[60]. Id. at 35.
[61]. Id. at 3.
[62]. Id.
[63]. Id.
[64]. Id.
[65]. See id. The Socialist Party also held no secret of its support for public defenders. See id. at 4 (“‘[T]he free administration of law and the creation of public defenders’ was a plank in the Socialist Party platform.”). This created further friction. See Ossei-Owusu, supra note 56, at 1181 (“[L]egal aid reformers’ concern about socialism and anarchism caused them to cater their services primarily to southern and eastern Europeans to the neglect of other racial minorities.”).
[66]. See Mayeux, supra note 55, at 50.
[67]. See id.
[68]. Id. (“This arrangement seemed to many lawyers and judges to provide an effective enough response to the problems that Goldman had highlighted, and to do so without resort to public funding.”).
[69]. See id. (“As a prominent example of privately funded indigent defense, New York’s voluntary defenders also stalled the momentum of the public defender movement nationally. Elite lawyers in Philadelphia and Boston established privately supported voluntary defenders in the early 1930s, and in both Cincinnati and Pittsburgh, the local Legal Aid Society had added a criminal division by 1930.”).
[70]. See id. at 62–63.
[71]. See id. at 37–38 (“[T]he Progressive Era public defender tended to be modeled after the public prosecutor, rather than the private defense attorney. Advocates imagined the public defender as ‘the complement to the district attorney’: both a counterweight and a mirror image to the public prosecutor, with similar hiring standards, resources, and duties.”).
[72]. Id. at 63.
[73]. See id. at 64 (“The optimal clients were young men with no prior criminal history. They had found ‘themselves in jail’ through no fault of their own, but rather ‘through some unfortunate set of circumstances’ that left them falsely accused of ‘a crime they did not commit.’”).
[74]. See id. at 69.
[75]. 287 U.S. 45 (1932).
[76]. See Mayeux, supra note 55, at 72–73.
[77]. Powell, 287 U.S. at 71.
[78]. See Mayeux, supra note 55, at 74.
[79]. 304 U.S. 458 (1938).
[80]. The incorporation doctrine is a constitutional doctrine through which most of the first ten amendments of the U.S. Constitution are made applicable to the states through the Due Process clause of the Fourteenth Amendment.
[81]. See Mayeux, supra note 55, at 75.
[82]. See id. at 76 (“Notably, however, federal public defender legislation was endorsed by the American Bar Association as early as 1939, at a time when many lawyers still preferred privately funded or ad hoc counsel in their local communities. . . . Once counsel was defined as a right, then it became associated even among the relatively conservative legal establishment with public provision.”).
[83]. See id. at 105 (“By the time the Court decided Gideon, it did so against the harmonious backdrop of years’ worth of presidential speeches that wrapped defendants’ rights in the American flag.”).
[84]. See id. at 89.
[85]. See id. at 97 (“Equal Justice for the Accused modeled just such an argument. . . . The key sentence went as follows: ‘Our democratic society needs to have representation provided to all accused so that the scales of justice can be equally balanced and the goal of equal justice under law achieved.’”); Special Comm. of the Ass’n of the Bar of the City of N.Y. & the Nat’l Legal Aid & Def. Assoc., Equal Justice for the Accused 34 (1st ed. 1959).
[86]. 372 U.S. 335 (1963).
[87]. See Mayeux, supra note 55, at 101.
[88]. In fact, Gideon overturned the Court’s previous decision in a little-known case, Betts v. Brady, 316 U.S. 455 (1942), which refused to incorporate the Johnson decision to the states. See Mayeux, supra note 55, at 77.
[89]. Gideon, 372 U.S. at 344.
[90]. See Ossei-Owusu, supra note 56, at 1176–77 (“In 1915, the Massachusetts Committee on Immigration similarly found that ‘hundreds of misunderstanding and misunderstood poor persons yearly suffer through the entrusting of their cases to men lacking in ability, honesty, or energy.’ That commission would recommend the creation of a public defender office.”).
[91]. Gideon, 372 U.S. at 344.
[92]. See, e.g., Harry S. Truman, Veto of Bill to Revise the Laws Relating to Immigration, Naturalization, and Nationality, The Am. Presidency Project (June 25, 1952), https://www.presidency.ucsb.edu/documents/veto-bill-revise-the-laws-relating-immigration-naturalization-and-nationality [https://perma.cc/YEK5-SFHY] (vetoing a bill that strengthened immigration restrictions on foreigners with criminal records because it did not include exceptions for people “convicted by ‘courts’ in communist countries,” stating “I do not approve of substituting totalitarian vengeance for democratic justice”).
[93]. See Mayeux, supra note 55, at 105.
[94]. See Yale Kamisar, The Right to Counsel and the Fourteenth Amendment: A Dialogue on “The Most Pervasive Right” of an Accused, 30 U. Chi. L. Rev. 1, 17 (1962).
[95]. Mayeux, supra note 55, at 105.
[96]. Id. at 103.
[97]. Id. at 113.
[98]. Id. at 102 (“The Supreme Court’s opinion in Gideon did not expressly refer to the public defender, nor did it provide details about how exactly states were supposed to organize their efforts to provide counsel. But a penumbral Gideon quickly developed among journalists, lawyers, and academics, who interpreted the decision as a mandate to establish public defender offices . . . .”).
[99]. Premal Dharia, Gideon Turns Sixty: The Court’s Decision Must Not Preempt Questions about the Role Public Defenders Can Play in Ending Mass Incarceration, Inquest (Mar. 8, 2023) [hereinafter Gideon Turns Sixty], https://inquest.org/gideon-turns-sixty/ [https://perma.cc/3CBC-9H69]; see Butler, supra note 54, at 2199 (comparing Gideon to Brown v. Board of Education and Miranda v. Arizona as decisions that did not mandate a vast restructuring of power relationships, but rather “served to justify and legitimate arrangements that would otherwise be severely threatened by constitutional rhetoric”).
[100]. See Ossei-Owusu, supra note 56, at 1170 (“World War I and the Bolshevik Revolution of 1917 that prompted the First Red Scare certainly did not ease American political anxieties. Anarchism and socialism gnawed away at public confidence in American exceptionalism as well as the presumed immunity of the United States to European political unrest.”).
[101]. See id. at 1193 (“Moreover, the Soviet Union pummeled the U.S. in the international media for its failure to address lynching, which was seen as the ‘close cousin [of] mob-dominated trials.’”).
[102]. See Mayeux, supra note 55, at 104 (“By cloaking the public defender in constitutional rights, the Supreme Court made it difficult to sustain the old argument that any public obligation to provide counsel was a slippery slope to bolshevism. The state of Alabama, in an amicus brief filed in Gideon in support of Florida, had tried to revive that old battle cry. ‘The people of our United States have long favored a free enterprise system under which they take care of themselves,’ Alabama reminded the Court, and ‘have sought to avoid socialism which, as we understand it, is a state of affairs in which the government takes care of the people.’ . . . But by 1963, Alabama was not really arguing with anyone.”).
[103]. See id. at 119.
[104]. Id. at 118–19.
[105]. Id. at 125. LaRue Brown, then-Chair of Massachusetts’s State Judicial Council and an outspoken proponent of public defenders, lamented that he and other supporters “‘never seemed to have any friends’ in the relevant committees. ‘Criminals don’t seem to have any vote appeal.’” Id.
[106]. See id. at 130.
[107]. Id. at 126.
[108]. Id. at 142.
[109]. Id.
[110]. See id. at 129 (“One public defender who worked in Boston told a magazine reporter, ‘The pay’s bad . . . but I live with my parents, so I manage. A married man couldn’t really afford this job.’”).
[111]. Id.
[112]. Id.
[113]. Id. at 130.
[114]. Id. at 144. See generally Issa Kohler-Haussman, Managerial Justice and Mass Misdemeanors, 66 Stan. L. Rev. 611, 619–20 (2014) (describing the concept of assembly-line justice in the context of New York City in the 1990s).
[115]. Mayeux, supra note 55, at 144 (quoting President’s Comm’n on L. Enf’t & the Admin. of Just., Report: The Challenge of Crime in a Free Society viii (1967) [hereinafter The Challenge of Crime]).
[116]. Id.
[117]. Id. (quoting Nat’l Advisory Comm’n on Disorders, Report of The National Advisory Commission on Civil Disorders 9 (1967)).
[118]. Id.
[119]. In Argersinger v. Hamlin, 407 U.S. 25, 40 (1972), the Supreme Court held that states were constitutionally required to provide counsel for indigent criminal defendants charged with any offense, even misdemeanors punishable by imprisonment.
[120]. The Challenge of Crime, supra note 115, at 151.
[121]. Nat’l Legal Aid & Def. Ass’n, The Other Face of Justice: A Report of The National Defender Survey 70 (1973); see, e.g., Guidelines for Legal Defense Systems in the United States (Black Letter), Nat’l Legal Aid & Def. Ass’n, https://www.nlada.org/defender-standards/guidelines-legal-defense-systems/black-letter [https://perma.cc/K8CZ-TPG2] (stating procedures and guidelines for effective legal representation).
[122]. See Reddy, supra note 58, at 9; Am. Civ. Liberties Union, ACLU Files Class-Action Lawsuit Against Pittsburgh Public Defenders for Failing to Counsel the Poor, C.R. Litig. Clearinghouse (Sep. 18, 1996), https://clearinghouse.net/doc/13559/ [https://perma.cc/F58C-YSC6].
[123]. See Reddy, supra note 58, at 9–10.
[124]. See id. at 10.
[125]. Rose, supra note 9, at 289; see Gideon’s Broken Promise, supra note 39, at 27 (“Aside from the potential violations of the right to a speedy trial, these delays disproportionately harm poor persons who, because they are unable to post bond, endure repeated delays while they remain locked up in jail.”).
[126]. Pub. L. No. 93-619, 88 Stat. 2076 (codified as amended at 18 U.S.C. §§ 3161–64 (2012)).
[127]. Rose, supra note 9, at 299–300 (“Although the Act is riddled with loopholes that prevent it from setting a universally applicable deadline for all criminal trials or from being an effective guarantor of speedy trial on its own, circuit court deference to the Act indicates that the exceptions it provides for not meeting deadlines should be considered in a Barker analysis.”); see, e.g., United States v. Mehrmanesh, 652 F.2d 766, 769 (9th Cir. 1980) (recognizing that a defendant who waits long periods before trial suffers from a “magnitude of disabilities,” including difficulties defending himself at trial, severe emotional strain, and financial hardship, therefore a “dissatisfied” Congress passed the Speedy Trial Act to “circumvent the Barker opinion and put teeth into the speedy trial guarantee”). See generally Brian P. Brooks, A New Speedy Trial Standard for Barker v. Wingo: Reviving a Constitutional Remedy in an Age of Statutes, 61 U. Chi. L. Rev. 587, 602–03 (1994) (analyzing the Supreme Court’s newly established factor analysis to evaluate alleged speedy trial right violations).
[128]. Rose, supra note 9, at 284; see Sequestering Justice: How the Budget Crisis is Undermining Our Courts: Hearing Before the Subcomm. on Bankruptcy and the Courts of the S. Comm. on the Judiciary, 113th Cong. 35 (2013) (statement of Hon. Julia S. Gibbons, Chair, Comm. on the Budget of the Jud. Conf. of the U.S.).
[129]. Justice Denied, supra note 38, at 59.
[130]. See id. at 60.
[131]. See id. Georgia’s situation will be further exemplified in a case that I will discuss further, Weis v. State, 287 Ga. 46 (2010), infra Part II, where Georgia’s public defenders had to work on a portion of their client’s case without pay.
[132]. Those were Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Kansas, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, and Wisconsin. Elizabeth McNichol & Iris J. Lav, State Budget Troubles Worsen 2 (2008), https://www.cbpp.org/sites/default/files/archive/9-8-08sfp.htm [https://perma.cc/DVJ2-5DAM].
[133]. Justice Denied, supra note 38, at 59.
[134]. Mayeux, supra note 55, at 150.
[135]. Id.; see Malcolm M. Feeley, Court Reform On Trial: Why Simple Solutions Fail 206 (2013).
[136]. See, e.g., People v. Williams, 58 Cal. 4th 197, 216–17 (2013).
[Defendant Williams] requested that he be appointed “an attorney that [was] not so busy.” [Public Defender] Wright agreed, saying: “He’s right. I am too busy. I would like to get rid of a few cases.” Nonetheless, he assured the trial court he would be able to provide a competent defense. . . . Defendant again voiced his concern over his attorney’s lack of progress in preparing for trial: “I would like to see if it’s possible to relieve my counsel and represent myself in this case, because I don’t feel that I’m going to get a fair trial. . . . [E]verything that [defense counsel] stipulated that he needed the extra 60 days for [at the last hearing], . . . still none of them was completed.”
Id. (alterations in original).
[137]. Cf. Brown v. Bd. of Educ., 347 U.S. 483 (1954) (overturning precedent of “separate but equal,” segregated public-school facilities in the United States). Brown contained a daunting decree: Separate but equal is a myth, and America’s schools must integrate to fulfill the Constitution’s promise of equal protection. Even if Brown v. Board of Education (Brown II), 349 U.S. 294 (1955), was unclear and insufficient, it provided some direction. Gideon was never followed by a “Gideon II,” nor did it mention public defenders, the foot soldiers of the Sixth Amendment’s promise against an indifferent government using the criminal legal system for unjust means. See Gideon Turns Sixty, supra note 99 (“[D]espite the pronouncement of Gideon, no meaningful roadmap was ever provided to actually implement organized and funded public defender offices across the country.”).
[138]. See Heather Baxter, Gideon’s Ghost: Providing the Sixth Amendment Right to Counsel in Times of Budgetary Crisis, 2010 Mich. St. L. Rev. 341, 349–50 (2010) (“When Gideon was decided, there were about 150,000 defendants charged with felonies who needed representation. . . . Gradually, after Gideon, funding for indigent representation did increase, slightly, but there was still not a large amount of money spent in this area. In 1985, ‘criminal justice activities’ were ‘less than 3% of all government spending,’ and only about 1.5% of that 3% was spent on indigent defense. Put another way, states spent, on average, less than one half of one percent of their budgets on indigent defense. By 1990, that number had not increased.”).
[139]. 407 U.S. 514 (1972).
[140]. Id. at 516.
[141]. Id.; see supra note 127, at 602–03 (“In Barker v. Wingo, the Supreme Court attempted to bring some order to speedy trial jurisprudence by establishing a test for evaluating speedy trial claims. The Barker test . . . was rather a consolidation of various tests already in force in the lower courts.”).
[142]. Barker, 407 U.S. at 516.
[143]. Id. at 516–17. Some may reel from the possible Fifth Amendment violation here as well.
[144]. Id. at 517 (“The Christian County Circuit Court h[eld] three terms each year—in February, June, and September. Barker’s initial trial was to take place in the September term of 1958. The first continuance postponed it until the February 1959 term. The second continuance was granted for one month only. Every term thereafter for as long as the Manning prosecutions were in process, the Commonwealth routinely moved to continue Barker’s case to the next term.”).
[145]. Id.
[146]. Id.
[147]. Id. at 517–18.
[148]. Id. at 518. He was ill for more than six months. The Court never revealed what his illness was.
[149]. Id.
[150]. Id.
[151]. Id. at 519.
[152]. Id.
[153]. Id. (“The inability of courts to provide a prompt trial has contributed to a large backlog of cases in urban courts which, among other things, enables defendants to negotiate more effectively for pleas of guilty to lesser offenses and otherwise manipulate the system.”); see System Overload, supra note 33, at 19 (“When public defense attorneys do not have enough time to handle all of their cases, they may be forced to continue (get time extensions for) many of their cases, resulting in an inefficient, costly system for all those involved and taxpayers in general.”).
[154]. Barker, 407 U.S. at 520.
[155]. The Court acknowledged that this is a double-edged sword that can work to the defendant’s detriment as well. See id. at 532.
[156]. See id. at 522 (“It is impossible to do more than generalize about when those circumstances [that endanger the values the right protects] exist. There is nothing comparable to the point in the process when a defendant exercises or waives his right to counsel or his right to a jury trial.”).
[157]. Id. at 533.
[158]. See id. at 531 (“To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.”).
[159]. Subsequent courts have retained the spirit of the Barker court’s belief in not drawing a line, but they still gravitate toward certain rules of recurrent practice. See, e.g., Doggett v. United States, 505 U.S. 647, 652 n.1 (1992) (“Depending on the nature of the charges, the lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year.”).
[160]. Barker, 407 U.S. at 531.
[161]. Id.
[162]. Id.
[163]. Id.
[164]. See id. at 531–32. It also rejected the demand-waiver rule in this context, which states that a defendant must assert their right early and often or else waive the right. See id. at 527 (“It is also noteworthy that such a rigid view of the demand-waiver rule places defense counsel in an awkward position. Unless he demands a trial early and often, he is in danger of frustrating his client’s right. If counsel is willing to tolerate some delay because he finds it reasonable and helpful in preparing his own case, he may be unable to obtain a speedy trial for his client at the end of that time.”).
[165]. Id. at 528–29 (“Such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. It allows the trial court to exercise a judicial discretion based on the circumstances, including due consideration of any applicable formal procedural rule.”).
[166]. Id. at 532.
[167]. Id.
[168]. Id. at 532–33.
[169]. Id. at 532.
[170]. Id.
[171]. Id. at 533 (“Finally, even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.”).
[172]. See id. at 530–33. This balancing test, some have argued, seems more a list of recurring, important factors than a test: “The Barker test . . . represented no radical innovation in speedy trial jurisprudence, but was rather a consolidation of various tests already in force in the lower courts. . . . [A]lthough Barker sought to clarify how the courts were to handle speedy trial claims—and although the Court effectively ratified the balancing approach already popular among courts and commentators—Barker introduced more confusion than clarity to speedy trial jurisprudence.” Brooks, supra note 127, at 588, 592.
[173]. Barker, 407 U.S. at 536.
[174]. Id. at 533.
[175]. Id. at 534.
[176]. See id. at 534–35.
[177]. Id. at 535 (“The probable reason for Barker’s attitude was that he was gambling on Manning’s acquittal.”).
[178]. See id. at 536 (“There may be a situation in which the defendant was represented by incompetent counsel, was severely prejudiced, or even cases in which the continuances were granted ex parte. But barring extraordinary circumstances, we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial.”).
[179]. See id. at 519.
[180]. See id. at 519–20 (“It must be of little comfort to the residents of Christian County, Kentucky, to know that Barker was at large on bail for over four years while accused of a vicious and brutal murder of which he was ultimately convicted.”).
[181]. Id. at 534–36.
[182]. See id. at 527 (determining that a “defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process”). Criticism of Defendant Barker’s strategy must at least be couched in the context of the prosecution’s decision to try Manning first and delay Barker’s case for five years to build their case against Barker. This was the prosecution’s gamble.
[183]. See id. at 534.
[184]. See, e.g., United States v. Mehrmanesh, 652 F.2d 766, 769 (9th Cir. 1980) (recognizing that a defendant who waits long periods before trial suffers from a “magnitude of disabilities,” including difficulties defending himself at trial, severe emotional strain, and financial hardship. Therefore a “dissatisfied” Congress passed the Speedy Trial Act to “circumvent the Barker opinion and put teeth into the speedy trial guarantee”).
[185]. See Barker, 407 U.S. at 536.
[186]. See, e.g., Justice Denied, supra note 38, at 119 (describing a federal case where the state of Illinois was charged with violating a defendant’s constitutional rights due to the Prairie State’s underfunding of the public defender system).
[187]. 454 U.S. 312 (1981).
[188]. A pro se complaint is one written by a defendant themself or with the assistance of an attorney but not written by an attorney on a defendant’s behalf.
[189]. 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .”).
[190]. Dodson, 454 U.S. at 314.
[191]. Id. at 315.
[192]. Id. at 314.
[193]. Id. at 315.
[194]. Id. at 316.
[195]. Id.
[196]. Id. at 329 (quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
[197]. Id. at 318.
[198]. Id.
[199]. Id. at 320.
[200]. Id. at 318–19.
[201]. Private attorneys, appointed by the court, are also not state actors “within the meaning of § 1983.” See id. at 318, 318 n.7.
[202]. Some have argued that the very adversarial nature of the public defender is parallel to the founding fathers’ vision of the separation of powers; thus, in my view, categorizing public defenders as state actors is apt. See Boudin & Fish, supra note 7, at 515–21.
[203]. Dodson, 454 U.S. at 321.
[204]. See Model Code of Pro. Resp. DR5-107 (A.B.A. 1976) (“A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.”).
[205]. The Court did not hold Polk County or the Offender Advocate’s Office liable under § 1983 either. Dodson, 454 U.S. at 325. It followed its Monell v. New York City Department of Social Services precedent that official policy must be “the moving force of the constitutional violation” in order to establish liability of a governmental body. 436 U.S. 658, 694 (1978). Here, there was no applicable constitutional tort because Shepard was within constitutional policy to withdraw from a case she deemed frivolous. But see Anders v. California, 386 U.S. 738, 744 (1967) (holding that even where a case is allegedly frivolous, the role of an advocate requires them to “support his client’s appeal to the best of his ability”).
[206]. See Gideon v. Wainwright, 372 U.S. 335, 345 (1963).
[207]. Model Code of Pro. Resp. DR5-107(B) (A.B.A. 1976). The modern analog would be Rule 5.2 in the Model Rules of Professional Conduct, 2023.
[208]. Dodson, 454 U.S. at 322.
[209]. See id. (“At least in the absence of pleading and proof to the contrary, we therefore cannot assume that Polk County, having employed public defenders to satisfy the State’s obligations under Gideon v. Wainwright, has attempted to control their action in a manner inconsistent with the principles on which Gideon rests.”).
[210]. See id. at 329 (Blackmun, J., dissenting).
[211]. Id. at 332 (Blackmun, J., dissenting).
[212]. Id. at 321–22. Such a bold declaration aids Paul Butler’s argument criticizing Gideon under the “critique of rights” approach he champions, where cases like Gideon diffuse “political resistance” toward the issues central to indigent criminal defense only to maintain or aid the status quo. See Butler, supra note 54, at 2178–79 (“Gideon bears some responsibility for legitimating these developments and diffusing political resistance to them. It invests the criminal justice system with a veneer of impartiality and respectability that it does not deserve.”).
[213]. Mayeux, supra note 55, at 61; see In re Hough, 24 Cal. 2d 522, 528–29 (1944) (holding that “when the public defender is appointed,” he becomes the defendant’s agent “to the same extent” as a hired lawyer. He remains “free from any restraint or domination by the district attorney” and “as free to act in behalf of his client as if he had been regularly employed and retained by the defendant whom he represents”).
[214]. 466 U.S. 668 (1984).
[215]. See id. at 708 (Marshall, J., dissenting).
The debilitating ambiguity of an “objective standard of reasonableness” in this context is illustrated by the majority’s failure to address important issues concerning the quality of representation mandated by the Constitution. It is an unfortunate but undeniable fact that a person of means, by selecting a lawyer and paying him enough to ensure he prepares thoroughly, usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case. Is a “reasonably competent attorney” a reasonably competent adequately paid retained lawyer or a reasonably competent appointed attorney? . . . The majority offers no clues as to the proper responses to these questions.
Id.
[216]. As discussed infra Part III.E, see, for example, Russell v. Denmark, 528 F. Supp. 3d 482, 492 (S.D. Miss. 2021), overruled by Russell v. Denmark, 68 F.4th 252, 260 (5th Cir. 2023) (reversing the district court opinion because the state court was owed deference under federal habeas corpus regime).
[217]. See Eve Brensike Primus, Disaggregating Ineffective Assistance of Counsel Doctrine; Four Forms of Constitutional Ineffectiveness, 72 Stan. L. Rev. 1581, 1589–90 (2020) (determining that Strickland’s two-pronged test, properly understood, applies only to episodic, personal forms of ineffective assistance, not structural or pervasive forms).
[218]. Strickland, 466 U.S. at 687.
[219]. See, e.g., Stephen B. Bright & Sia M. Sanneh, Fifty Years of Defiance and Resistance After Gideon v. Wainwright, 122 Yale L. J. 2150, 2171 (2013) (“Thus, the Court of Appeals for the Eleventh Circuit upheld a death sentence by doubly deferring under Strickland and the habeas corpus statute to a state court’s conclusion that the outcome of the case at issue would not have been different even though the lead defense lawyer drank a quart of vodka every night of trial. The lawyer was also preparing to be sued, criminally prosecuted, and disbarred for stealing client funds, and he failed to present evidence that his intellectually limited client had been ‘subjected to abuse so severe, so frequent, and so notorious that his neighbors called his childhood home “the Torture Chamber.”’”).
[220]. Reddy, supra note 58, at 16 (“Because Strickland requires that the existence of prejudice be evaluated on the face of the record, it targets only errors of commission, ignoring the reality that ineffectiveness is more likely to result in errors of omission (such as failure to investigate).”).
[221]. See id.
[222]. See Primus, supra note 217, at 1614–15 (“Some have argued that the pervasive structural problems in indigent defense delivery systems should not trigger Cronic violations, citing the Court’s refusal to recognize a structural problem in Cronic itself, its unwillingness in the years since to recognize structural ineffectiveness in other cases, and its description of the structural exception as ‘narrow.’”).
[223]. See id. at 1586 (“Structural ineffectiveness can also be the product of the indigent defense delivery system. If an attorney must handle 19,000 cases in a year (which would give her only seven minutes for the average case), it does not matter how qualified she is or how hard she is willing to work. She cannot provide effective assistance of counsel when the system gives her so little time.”); Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir. 1988) (holding that the Strickland v. Washington IAC standard was “inappropriate for a civil suit seeking prospective relief” because deficiencies that do not meet the “ineffectiveness” standard, like denial of one’s right to counsel due to systemic delays, may nonetheless violate a defendant’s rights under the Sixth Amendment).
[224]. See, e.g., Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122, 1124 (W.D. Wash. 2013) (finding two cities in Washington State were regularly and systematically violating indigent defendants’ Sixth Amendment rights, noting that, due to their high caseloads, defenders had no ability to investigate their cases or meet with their clients before trial).
[225]. See Primus, supra note 217, at 1642 (“[I]f all of the defense attorneys in the jurisdiction have excessive caseloads such that they cannot investigate their cases pretrial, then no particular attorney is ineffective in failing to investigate: She is just acting in accordance with the prevailing community practice. This leveling-down approach is problematic because it uses structural problems in defense delivery systems to justify patently ineffective attorney performance. It insulates defense attorneys who join in community practices that ignore attorneys’ professional obligations to their clients. It also fails to incentivize attorneys to comply with their professional obligations and raise the level of representation to constitutionally acceptable levels. It has the perverse effect of discouraging defense attorneys from highlighting structural ineffectiveness problems that would, in turn, raise their own professional obligations.”).
[226]. Vermont v. Brillon, 556 U.S. 81 (2009).
[227]. Id. at 84.
[228]. Id. at 86–87.
[229]. Id. at 87.
[230]. Id.
[231]. Id.
[232]. Id. The Vermont Supreme Court attributed this delay to the state rather than to the defendant. See id. at 95–96 (Breyer, J., dissenting).
[233]. Id. at 88.
[234]. Id. at 87–88. The Court does not make clear what these contract modifications entailed. I can only infer that the Defender General’s Office faced budget constraints.
[235]. Id. at 88.
[236]. State v. Brillon, 955 A.2d 1108, 1122 (Vt. 2008).
[237]. Brillon, 556 U.S. at 92.
[238]. See id. at 91 (quoting Polk County v. Dodson, 454 U.S. 312, 320–22 (1981) (rejecting the view that public defenders act under color of state law because they are paid by the state)).
[239]. See id. at 93 (“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 a delay tactic.”).
[240]. See Brief for Petitioner on the Merits at 36, Vermont v. Brillon, 556 U.S. 81 (2009) (No. 08-88).
[241]. Brillon, 556 U.S. at 92.
[242]. Id. at 93–94.
[243]. Id. at 94.
[244]. Id. (emphasis added).
[245]. In fairness, the Vermont Supreme Court had not defined it either.
[246]. See Brillon, 556 U.S. at 88.
[247]. Id. at 91.
[248]. Model Rules of Pro. Conduct, r. 1.1–1.3 (A.B.A. 1983).
[249]. McCoy v. Louisiana, 584 U.S. 414, 422 (2018).
[250]. Of course, this is assuming public defenders have the time and resources to address each of their cases adequately beyond need for additional extensions and continuances.
[251]. See Cal. Rules of Court, Rule 3.1332(c).
[252]. Id.; see Cal. Penal Code § 1050 (2004).
[253]. Cal. Rules of Court, Rule 3.1332(c)(1)–(4) (emphasis added).
[254]. Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981).
[255]. Id. at 332.
[256]. See, e.g., Nicholas M. Pace, Malia N. Brink, Cynthia G. Lee & Stephen F. Hanlon, National Public Defense Work Study 4 (2023) (“In one widely reported instance, for example, attorneys assigned to a misdemeanor caseload at a metropolitan office providing public defense were each appointed to an average of 2,225 cases per year. Assuming that 40 hours each week of the year were devoted to nothing but client representation, this caseload would allow an attorney to spend an average of about 56 minutes on each client’s case. In that same office, attorneys assigned to a felony caseload were appointed to an annual average of more than 436 noncapital felonies, effectively allowing for only 4 hours and 47 minutes, on average, to defend clients facing decades in prison. Under such circumstances, the assistance of counsel might consist of little more than meeting the client and immediately entering a guilty plea.”); see Mayeux, supra note 55, at 151–52 (“The [National Defender Project] staffer was in his twenties and fresh out of Northwestern Law School. Pascagoula[, Mississippi’s] then-incumbent public defender was also a recent law graduate—from the University of Mississippi, or Ole Miss—and brought his Chicago counterpart to visit the Pascagoula city jail. There, they saw ‘a 14 year old Negro boy’ lying in a ‘maximum security’ cell. The child appeared ‘to have suffered a severe head injury.’ No one had called a doctor. . . . ‘When asked why he did not take action in the case,’ the memo also noted, Pascagoula’s then-incumbent public defender ‘reported that he had not been asked to do so and was not willing otherwise to get involved.’”).
[257]. See supra Part I.
[258]. As Justice Breyer noted in his Brillon dissent, the Vermont Supreme Court rightly found that the state of Vermont had conceded its failure to move the case forward because of “contractual reasons” or “heavy caseload.” Vermont v. Brillon, 556 U.S. 81, 86–87 (2009) (Breyer, J., dissenting). He felt that the case was improvidently granted. Id.
[259]. Respondents chastised the state of Vermont for sowing implicit assumptions of collusion between Brillon and his lawyers to drag out proceedings, as well as demonizing Brillon as part of a “strategy to spin a story.” Respondent’s Brief on the Merits at 2, Vermont v. Brillon, 556 U.S. 81 (2009) (No. 08-88).
[260]. Brillon, 556 U.S. at 93–94.
[261]. Brooks, supra note 127, at 592 (“Thus, although Barker sought to clarify how the courts were to handle speedy trial claims—and although the Court effectively ratified the balancing approach already popular among courts and commentators—Barker introduced more confusion than clarity to speedy trial jurisprudence.”).
[262]. The closest scholar to arguing for a move toward speedy trial claims wrote an article five years after Brillon in response to another Supreme Court case that almost took up the issue directly, Boyer v. Louisiana, 569 U.S. 238 (2013). But the author does not explore the systemic breakdown argument as part of that speedy trial claim, likely because the claim was still too new for courts and defendants to sink their teeth into. See generally Rose, supra note 9.
[263]. 58 Cal. 4th 197 (2013).
[264]. The California Supreme Court Justice who authored the Williams opinion, Justice Goodwin Liu, was a former clerk of Justice Ginsburg, but did not clerk for Justice Ginsburg at the time she wrote the majority opinion in Vermont v. Brillon. Associate Justice Goodwin H. Liu, Sup. Ct. of Cal., https://supreme.courts.ca.gov/about-court/justices-court/associate-justice-goodwin-h-liu [https://perma.cc/7E34-4LKE].
[265]. Williams, 58 Cal. 4th at 208, 215.
[266]. Id. at 215–16 (“Defendant initially refused to waive time, stating: ‘I don’t want to waive no time. I want to come on and do this.’ . . . The trial court advised defendant to reconsider: ‘You can demand your right to go to preliminary hearing. That’s fine with the Court. I’m just saying, also realize that your attorneys have indicated they need to review some of this additional information.’ . . . Defendant then agreed to waive time.”).
[267]. See People v. Marsden, 2 Cal. 3d 118, 124 (1970) (holding that “a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant’s offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney”).
[268]. Williams, 58 Cal. 4th at 216.
[269]. Id.
[270]. Id.
[271]. Id.
[272]. Id. at 217.
[273]. Id.
[274]. Id.
[275]. Id. (emphasis added). In other words, the trial court weighed one fundamental right provided in the Sixth Amendment heavier than it did another fundamental right in the Sixth Amendment. Courts commonly force litigants to do this. It does not mean that they should.
[276]. Id.
[277]. Id. at 218.
[278]. See id.
[279]. Id.
[280]. The Criminal Defense Panel are assigned counsel that take cases when the public defender’s office announces a conflict. They represent one of three public defender models that emerged after Gideon. The other two are the public defender system model and the contract counsel model. For more discussion on the three models, see Baxter, supra note 138, at 348.
[281]. Williams, 58 Cal. 4th at 221, 223, 230.
[282]. Id. at 232.
[283]. Id. at 222–23.
[284]. Id. at 223.
[285]. Id.
[286]. Id. at 232.
[287]. Id. at 221, 223, 230.
[288]. Id. at 217.
[289]. Id. at 226.
[290]. Id. at 221, 223, 230.
[291]. See id. at 229 (“He tried to fire Forest Wright so many times I can’t count them. Then he was given Grover Porter. Mr. Porter’s health did not allow him to take the aggravation that we now see that Mr. Williams dishes out to the people that are forced unfortunately to deal with him. He fired—or he Marsden’d John Aquilina. Your honor has done so many Marsden motions on Mr. Gunn as counsel, I think it says something. When you look back—this is a conservative estimate—he’s made 25 Marsden motions. Now, at some point the world says, ‘Is it us or is it him?’ And it’s him.”).
[292]. Id. at 231.
[293]. Id. at 208, 232.
[294]. Id. at 215.
[295]. Id. at 241, 251–52.
[296]. Doggett v. United States, 505 U.S. 647, 651–52 (1992).
[297]. See Williams, 58 Cal. 4th at 233 (“Because ‘[t]he speedy-trial right is “amorphous,” “slippery,” and “necessarily relative,”’ the high court in Barker ‘refused to “quantif[y]” the right “into a specified number of days or months” or to hinge the right on a defendant’s explicit request for a speedy trial.’” (quoting Brillon, 556 U.S. at 89–90)).
[298]. See Doggett, 505 U.S. at 652, n.1 (noting that “the lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one year”).
[299]. Williams, 58 Cal. 4th at 215.
[300]. Id. at 235.
[301]. Id. at 235.
[302]. Id.
[303]. Id. at 236.
[304]. Id. at 237.
[305]. Id. at 239.
[306]. Id. (citing United States v. Loud Hawk, 474 U.S. 302, 315 (1986)).
[307]. See id. at 251-52.
[308]. Id. at 239-51.
[309]. Id. at 239.
[310]. Id. at 239.
[311]. Id. at 250-51.
[312]. Id. at 251 (citation omitted).
[313]. Id.
[314]. Id. at 241.
[315]. Id.
[316]. Id. at 248.
[317]. Id. at 231.
[318]. Id. at 248.
[319]. Id.
[320]. See id.
[321]. Id.
[322]. See id. at 249.
[323]. See id.
[324]. See id.
[325]. Id.
[326]. Id. at 247.
[327]. See id. at 249.
[328]. From here on, the Barker analysis becomes the Brillon analysis.
[329]. John Gross, Reframing the Indigent Defense Crisis, Harv. L. Rev. Blog (Mar. 18, 2023), https://harvardlawreview.org/blog/2023/03/reframing-the-indigent-defense-crisis/ [https://perma.cc/FG7Y-Y6ML] (“In the last several years, the American Bar Association has sponsored several public defender workload studies that have relied on an iterative process to come up with reliable workload estimates. These studies have been done in Missouri, Colorado, Indiana, Louisiana, Rhode Island, and most recently, in Oregon and New Mexico. The results are staggering. The Oregon Project Report found that the 592 attorneys with whom the state contracts to provide public defense would have to work over 26 hours every day of the year to provide adequate assistance of counsel based on the number of cases they are currently handling.”).
[330]. One could argue that Williams had nothing to lose, and thus delay was his best option, which he exercised. This is certainly an argument that the prosecution sought to use against Williams. See Williams, 58 Cal. 4th at 229. Beyond presuming that Williams was guilty, however, this argument does not logically fit with the many actions Williams took in front of the court to hasten his trial date. Even if this was some bait-and-switch game he was playing, Williams would have been playing it horribly.
[331]. See id. at 251.
[332]. See People v. Superior Ct. (Vasquez), 27 Cal. App. 5th 36, 41 (2018) (stating that systemic breakdown “forced Vasquez to choose between having prepared counsel and a timely trial. Yet under our Constitution he had a right to both.”).
[333]. 27 Cal. App. 5th 36 (2018), partially overruled on other grounds by, Camacho v. Superior Ct., 15 Cal. 5th 354, 361–72 (2023).
[334]. 54 Cal. App. 5th 785 (2020), partially overruled on other grounds by, Camacho v. Superior Ct., 15 Cal. 5th 354, 361–72 (2023).
[335]. Vasquez, 27 Cal. App. 5th at 40.
[336]. Id.
[337]. Cal. Welf. & Inst. Code § 6600(a)(1) (West 2019).
[338]. For a more thorough description of the procedural intricacies of the SVP Act, see People v. Camacho, 15 Cal. 5th 354, 368–72 (2023).
[339]. See Vasquez, 27 Cal. App. 5th at 40.
[340]. Cal. Welf. & Inst. Code § 6600(a)(1) (West 2019).
[341]. See Vasquez, 27 Cal. App. 5th at 40.
[342]. See Camacho, 15 Cal. 5th at 369.
[343]. Vasquez had previously served his sentence, and his involuntary civil commitment was an add-on in light of his guilt conviction. However procedurally, Vasquez was still entitled to all of the same protections of the Sixth Amendment. See People v. Superior Ct. (Vasquez), 27 Cal. App. 5th 36, 58 (“Because civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections.” (quoting People v. Otto, 26 Cal. 4th 200, 209 (2001))).
[344]. See id. at 40, 45, 47.
[345]. Id. at 46.
[346]. Id.
[347]. Id. at 46–47.
[348]. Id. at 48.
[349]. Id. at 48–49.
[350]. Id. at 49.
[351]. Id. at 50 (emphasis added).
[352]. Id. at 50, 53.
[353]. Id. at 71.
[354]. Id. at 52.
[355]. Id. at 41.
[356]. See id. at 61–64.
[357]. See id. at 62.
[358]. See id. at 42. Though Vasquez’s SVP evaluations were all positive except for one (meaning he was an SVP and would not be released on probable cause), he entered a sex offender treatment program in 2015. The court remarked that this could have affected his trial outcome if he had been given a trial. Even if the prosecution had a strong case, “it was the government’s burden to prove Vasquez was an SVP and Vasquez had a right to present evidence showing he did not pose a risk to the public. He was denied this right for 17 years.” Id. at 63–64.
[359]. Id. at 54.
[360]. Id. at 71.
[361]. Id.
[362]. Id.
[363]. Id.
[364]. Id. at 75–76.
[365]. See id. at 73 (“On this record, the trial court did not err in finding ‘[t]he dysfunctional manner in which the Public Defender’s Office handled Mr. Vasquez’s case was precisely the type of systemic or institutional breakdown contemplated by Brillon and Williams. Accordingly, the reason for the delay in bringing the case to trial should be attributed to the state, and not to Mr. Vasquez.’ In contrast to the facts before the courts in Brillon and Williams, in which lengthy delays resulted from the failure of individual attorneys to move the defendants’ cases forward, here the record supported the trial court’s conclusion that there was a breakdown in the public defender system.”).
[366]. Id. at 83.
[367]. 54 Cal. App. 5th 785, 813 (2020), partially overruled on other grounds by, Camacho v. Superior Ct., 15 Cal. 5th 354, 361–72 (2023).
[368]. See Vasquez, 27 Cal. App. 5th at 50; DeCasas, 54 Cal. App. 5th at 790.
[369]. DeCasas, 54 Cal. App. 5th at 809–10.
[370]. Id. at 796–97.
[371]. Id. at 797.
[372]. Id. at 796. The letter accused the public defender of “jeopardizing the representation of their clients . . . and placing the lawyers in the untenable position of either [violating their clients’ rights to effective assistance of counsel] or effectively abandoning their clients.” Id.
[373]. Id. at 800.
[374]. Id. at 801.
[375]. Id.; see People v. Superior Ct. (Vasquez), 27 Cal. App. 5th 36, 73 (2018).
[376]. DeCasas, 54 Cal. App. 5th at 810; see Vasquez, 27 Cal. App. 5th at 74–75.
[377]. See Vasquez, 27 Cal. App. 5th at 76; DeCasas, 54 Cal. App. 5th at 810.
[378]. See DeCasas, 54 Cal. App. 5th at 810–11; Vasquez, 27 Cal. App. 5th at 81.
[379]. See DeCasas, 54 Cal. App. 5th at 811; Vasquez, 27 Cal. App. 5th at 81.
[380]. Vasquez, 27 Cal. App. 5th at 50–51.
[381]. Id. at 46.
[382]. Id. at 61 (“Barker rejected the rule that a defendant who fails to demand a speedy trial forever waives his right.” (internal citations omitted)); Barker v. Wingo, 407 U.S. 514, 528 (1972) (“We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right.”).
[383]. See DeCasas, 53 Cal. App. 5th at 800.
[384]. See People v. Williams, 58 Cal. 4th 197, 248 (2013) (“Because defendant did not file a motion to dismiss on speedy trial grounds in the trial court, the underlying cause of the delay in this case was never litigated, the various statements by defendant and his attorneys were never examined in an adversarial proceeding, and the trial court made no findings that might inform the issue before us.”).
[385]. Id. at 216; see also id. at 230 (“When asked if he would agree to a continuance, defendant stated: ‘I don’t agree to nothing.’ Finding that there was a ‘15–court day waiver beyond today’s date,’ the trial court continued the matter to August 10, 2001.”). Here, the lower court disregarded Williams’s constructive speedy trial right assertion because an existing time waiver was still operative.
[386]. 15 Cal. 5th 354, 374 (2023).
[387]. Id. at 372.
[388]. Id. at 374.
[389]. See id. (“After the date was set, the prosecutor said that since Camacho was present, he wanted to ‘clear up a few things.’ The prosecutor continued, ‘First off, the [d]efendant does have a right to a speedy trial in this matter within a reasonable time period.’”).
[390]. Id.
[391]. Id. at 375.
[392]. Id. at 376.
[393]. Id. at 377.
[394]. Id.
[395]. Id.
[396]. See id. at 392 (holding there is “no presumption of prejudice” to Camacho’s defense as a result of delays exceeding fifteen years).
[397]. Id. at 385.
[398]. See id. at 384 (“Our analysis of the reasons for delay in this case is hampered to some extent by the limited record before us. . . . [A]s far as the record shows, virtually all the delays in this case were either sought by the defense or agreed to by the defense, and no continuances were requested solely by the People. Camacho does not contend otherwise.”).
[399]. Id.
[400]. See id. at 389 (“The trial judge is the captain of the ship; and it goes without saying that the ship will go in circles if the crew is running around the deck with no firm marching orders.” (citing People v. Williams, 58 Cal. 4th 197, 251 (2013))).
[401]. See id. at 389–90.
[402]. Id. at 376.
[403]. Id. at 390 (citing Barker v. Wingo, 407 U.S. 514, 531 (1972)).
[404]. Id. at 392.
[405]. See Needham v. Superior Ct., 16 Cal. 5th 333, 352, 368 (2024) (“We have rejected due process and equal protection challenges against the SVPA due in part to the Act’s requirement that a currently diagnosed mental disorder has been proved. . . . [T]he SVPA provides a highly structured process under which a convicted sex offender may be civilly committed after completion of a sentence.”).
[406]. Camacho, 15 Cal. 5th at 392.
[407]. Id.
[408]. Id. at 372–73.
[409]. Weis v. State, 287 Ga. 46, 55 (2010).
[410]. Id. at 46.
[411]. Id.
[412]. The Georgia Public Defender Standards Council is Georgia’s state public defender’s office, to be contrasted from the Griffin Judicial Circuit, which is a local office.
[413]. Weis, 287 Ga. at 47.
[414]. Id.
[415]. Id. at 47–48.
[416]. Id.
[417]. Id. at 48.
[418]. Id.
[419]. See id. (“At the July 8, 2009 evidentiary hearing, the Standards Council agreed to provide funding for Weis’ defense, but at a significantly reduced amount from the amount that counsel believed was necessary in order to provide an adequate defense.”).
[420]. Id. at 53–55.
[421]. Id. at 50.
[422]. Id.
[423]. See id.
[424]. Id.
[425]. Id. at 53.
[426]. Id. at 51.
[427]. See id.
[428]. Id. at 51–52.
[429]. Id. at 59 (Thompson, J., dissenting).
[430]. Id. at 58.
[431]. Id. at 59 (citation omitted).
[432]. See id. at 50.
[433]. Id. at 59.
[434]. See Hans v. Louisiana, 134 U.S. 1, 14–15 (1890) (holding that a state may not be sued in federal court by even its own citizens due to the principles of state sovereign immunity).
[435]. See Russell v. State, 70 So. 3d 529, 535–36, 538 (Miss. Ct. App. 2011), cert. denied, 80 So. 3d 111 (Miss. 2012) (table decision).
[436]. Russell v. Denmark, 528 F. Supp. 3d 482, 505 (S.D. Miss. 2021), overruled by Russell v. Denmark, 68 F.4th 252, 260 (5th Cir. 2023).
[437]. Russell, 528 F. Supp. 3d at 499.
[438]. Id. at 492.
[439]. Id. at 489.
[440]. See id. at 498–99 (“On direct appeal the state appellate court weighed this factor as ‘neutral.’ It found that ‘Russell made the request for new counsel and also requested a mental evaluation, resulting in a delay of the trial date in order to accommodate these requests.’” (citation omitted)).
[441]. Russell v. Denmark, 68 F.4th 252, 262 (5th Cir. 2023).
[442]. 28 U.S.C. § 2254.
[443]. 28 U.S.C. § 2254(d).
[444]. See Russell, 68 F.4th at 262 (citing Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003)).
[445]. See id. De novo means “anew” in Latin. It is a term that describes when a reviewing judge decides a case’s issues without reference to any legal conclusion made by the lower court.
[446]. See id.
[447]. See id. at 260, 273.
[448]. See Lauren Sudeall Lucas, Effectively Ineffective: The Failure of Courts to Address Underfunded Indigent Defense Systems, 118 Harv. L. Rev. 1731, 1742 (2005) (discussing judges’ refusal to find defense counsel ineffective in three IAC cases in Louisiana, Oklahoma, and Arizona when counsel faced funding issues).
[449]. One way to ensure counsel in all criminal proceedings is to couch the right to counsel under an originalist lens, possibly prompting conservative courts, like the Supreme Court, to support funding counsel for all criminal proceedings. See generally Andrea Roth, The Embarrassing Sixth Amendment, 112 Calif. L. Rev. 55 (2024) (arguing that an originalist lens to the Sixth Amendment would greatly expand the right to counsel in all criminal prosecutions). Though outside the scope of this Note, it is an interesting and noteworthy approach.
[450]. People v. DeCasas, 54 Cal. App. 5th 785, 796 (2020).
[451]. State v. Stock, 140 N.M. 676, 688 (2006).
[452]. Id. at 679.
[453]. Stock could not timely assert his speedy trial right due to “Defense Counsel’s inability to make the proper motion due to an unmanageable caseload.” Id. at 685. But the court could not “say, as the Court in Barker did, that Defendant ‘did not want a speedy trial.’” Id.
[454]. Id. at 684.
[455]. Id. at 683.
[456]. Id. at 679.
[457]. Unlike Defendant Brillon, whose own behavior Justice Ginsburg concluded contributed to much of his trial’s delay, Stock was largely absent from his own defense. He did not complain about his public defenders; he did not have the opportunity. Should this still have weighed against Stock? As Stock’s agents, under Brillon, it would seem so despite the state being responsible for moving the case forward. Stock is still good law, however, and has at least some persuasive value.
[458]. Russell v. Denmark, 528 F. Supp. 3d 482, 499 (S.D. Miss. 2021), overruled by Russell v. Denmark, 68 F.4th 252, 260 (5th Cir. 2023).
[459]. Id. at 502.
[460]. Id. at 496. (“‘[A] delay must persist for at least eighteen months over and above that bare minimum’—i.e., the delay must exceed two-and-a-half years—‘for this factor to strongly favor the accused.’” (citation omitted)).
[461]. Id. at 497 (citing Vermont v. Brillon, 556 U.S. 81, 94 (2009)).
[462]. See id. at 492 (explaining how Russell objected to the exam because his attorney “went to the judge and moved for a mental examination without consulting Russell”).
[463]. United States v. Sutton, 184 F. Supp. 3d 503, 514 (E.D. Ky. 2016).
[464]. Id. at 506.
[465]. See 28 U.S.C. § 2255.
[466]. Sutton, 184 F. Supp. 3d at 507.
[467]. Id. at 514.
[468]. Id. at 513 (citation omitted).
[469]. Id.
[470]. Id.
[471]. It could however be possible that a delay occurs, and a defendant had no intention of pleading guilty. This was the case in 1992 where the government made no serious effort to find a defendant after indicting him, and for six years that defendant had no knowledge of his charges, prompting the Supreme Court to dismiss his charges. See Doggett v. United States, 505 U.S. 647, 652–53 (1992) (holding that a delay of eight-and-a-half years violated Defendant’s Sixth Amendment right to a speedy trial when Defendant moved to Colombia shortly after his indictment, returned after six years to be arrested, and the government’s “investigators made no serious effort to test their progressively more questionable assumption that Doggett was living abroad, . . . had they done so, they could have found him within minutes”).
[472]. See Russell v. Denmark, 528 F. Supp. 3d 482, 496 (S.D. Miss. 2021), overruled by Russell v. Denmark, 68 F.4th 252, 260 (5th Cir. 2023) (According to the Fifth Circuit, “‘[a] delay must persist for at least eighteen months over and above that bare minimum’—i.e., the delay must exceed two-and-a-half years—‘for this factor to strongly favor the accused.’” (citation omitted)).
[473]. This would include the delay experienced by Vasquez and DeCasas, regardless of the holding in Camacho that an SVP’s delay is not presumptively prejudicial due to the differences that involuntary commitment has with imprisonment. Camacho v. Superior Ct., 15 Cal. 5th 354, 374 (2023). As of this writing, the Brillon test’s triggering mechanism, delay that broaches a year, is either unavailable or unapparent for SVPs in California.
[474]. See Respondent’s Brief on the Merits at 28, Vermont v. Brillon, 556 U.S. 81 (2009) (No. 08-88).
[475]. U.S. Dep’t of Just., Introduction to Report of the National Advisory Commission on Criminal Justice Standards and Goals (1973), https://www.nlada.org/defender-standards/national-advisory-commission [https://perma.cc/C5X5-BW58]. A discussion on case load limits follows infra Part V.B. In 2023, a modernized rendition of national standards sought to look at public defense caseload more realistically but as of 2025 has yet to be widely adopted despite key support. See Pace et al., supra note 256, at 113.
[476]. A recent California Supreme Court case, People v. Brown, 14 Cal. 5th 530, 545 (2023), held that a continuance must be granted if its denial would cause the case to be dismissed, unless the case dismissal would be in furtherance of justice. Proper wielding of both the California and the federal speedy trial right would interpret unreasonable delays as warranting a case dismissal in furtherance of justice.
[477]. My time as an intern in the Alameda County Public Defender’s Office arguing Cal. Penal Code § 1538.5 (West 2011) motions made this painstakingly clear.
[478]. People v. Williams, 58 Cal. 4th 197, 241 (2013).
[479]. Id. at 229.
[480]. Id. at 216 (“Defendant initially refused to waive time, stating: ‘I don’t want to waive no time. I want to come on and do this.’ He explained: ‘[T]his case is my life.’ . . . The trial court advised defendant to reconsider: ‘You can demand your right to go to preliminary hearing. That’s fine with the Court. I’m just saying, also realize that your attorneys have indicated they need to review some of this additional information. If that’s fine with you and you don’t care, . . . because you have knowingly indicated you want to go forth whether your attorneys are prepared or not . . . it is going to preliminary hearing today.’ Defendant then agreed to waive time.”).
[481]. Id. at 219.
[482]. See Russell v. Denmark, 528 F. Supp. 3d 482, 495 (S.D. Miss. 2021).
[483]. 569 U.S. 238 (2013).
[484]. Justices Alito, Scalia, and Thomas also wrote a concurring opinion in which they denied that there was systemic breakdown. They suggested that the delay that Boyer experienced was not “caused by the State’s failure to provide funding but simply that the delay was attributable to the funding issue.” Id. at 240–41 (Alito, J., concurring). In other words, Boyer’s delay is what caused the funding issue, such that Boyer’s multiple motions and complaints decrying the delay he experienced caused the state to run out of money following the natural disaster the state of Louisiana experienced.
[485]. Id. at 239.
[486]. Id. at 244 (emphasis omitted).
[487]. Id. at 246.
[488]. Id.
[489]. Id.
[490]. Id. at 249.
[491]. See Madiba K. Dennie, The Supreme Court Is a Glorified Protection Racket for Conservative Billionaires, Balls & Strikes (Feb. 10, 2026), https://ballsandstrikes.org/scotus/shadow-docket-supreme-court-study/ [https://perma.cc/UG2Y-N4ZM] (“Together, the numbers show that today’s Court is getting dramatically fewer appeals from low-income people than it was even just a few years ago. . . . Others have hypothesized that public defender offices might be (understandably) reluctant to bring cases before a six-justice conservative supermajority that can be as hostile to criminal defendants as it is to poor people.”); Zeke Webster, The Amazing Vanishing Bill of Rights, Balls & Strikes (Feb. 9, 2022), https://ballsandstrikes.org/legal-culture/amazing-vanishing-bill-of-rights/ [https://perma.cc/PG2H-7VN3] (“[The Sixth and Eighth Amendments] recognize the inherent risk that the government will use criminal courts to oppress the poor or vulnerable minorities rather than to protect them—which is why the Supreme Court has spent decades reinterpreting these amendments such that they barely protect anyone from anything.”).
[492]. See Barker v. Wingo, 407 U.S. 514, 519 (1972).
[493]. See supra Part I; Barker, 407 U.S. at 519 (“In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.”).
[494]. There are many other actions that lower courts can take to stem the tide of constitutional crisis. Namely, courts must and should utilize their expertise in court functions and order the legislature to adequately fund the courts and criminal legal system to ensure that states are meeting their state and federal constitutional objectives. See Lucas, supra note 448, at 1745 (“One way in which courts have justified ordering legislatures to expend funds is by asserting that the provision of indigent defense, and therefore the compensation of attorneys providing that service, is a judicial function; it then follows that by underfunding indigent defense, the legislature infringes upon the judiciary’s powers, which flips the separation of powers argument entirely.”).
[495]. In 2026, California signaled support for indigent defendants and their public defenders when it passed Assembly Concurrent Resolution 159, a statement of the legislature’s priorities for upcoming legislative cycles. Though not a substantive law change, the resolution speaks to the issues raised in this Note by recognizing that public defenders ensure “fair trials” and encouraging “the development of statewide approaches to indigent defense that incorporate empirical workload measures, promote sustainable staffing and funding, improve data collection and transparency, and ensure that state funding structures do not perpetuate inequities between prosecution and defense.” Assemb. Cong. Res. No. 159, 2025–2026 Reg. Sess. (Cal. 2026).
[496]. See System Overload, supra note 33, at 34 (citing the ABA Ten Principles, which include “5. Defense counsel’s workload is controlled to permit the rendering of quality representation”; “8. There is parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system”; and “9. Defense counsel is provided with and required to attend continuing legal education”); Justice Denied, supra note 38, at 196 (“Recommendation 8—Sufficient support services and resources should be provided to enable all defense attorneys to deliver quality indigent defense representation, including access to independent experts, investigators, social workers, paralegals, secretaries, technology, research capabilities, and training.”); Chemerinsky, supra note 39, at 2691 (“A decade ago, on the fortieth anniversary of Gideon, an American Bar Association Task Force recommended: ‘To fulfill the constitutional guarantee of effective assistance of counsel, state governments should provide increased funding for the delivery of indigent defense services in criminal and juvenile delinquency proceedings at a level that ensures the provision of uniform, quality legal representation. . . .’ The same recommendation is sure to be made again on this the fiftieth anniversary of Gideon—and I predict it will be uttered in a decade on the sixtieth as well.”).
[497]. U.S. Dep’t Of Just., Standard 13.12 Workload of Public Defenders, in Report of the National Advisory Commission on Criminal Justice Standards And Goals (1973), https://www.nlada.org/defender-standards/national-advisory-commission/black-letter [https://perma.cc/FZS3-QSST].
[498]. System Overload, supra note 33, at 10.
[499]. Id.
[500]. Id. at 11.
[501]. Id. at 12.
[502]. See, e.g., Pace et al., supra note 256, at ix (describing its study of public defender workload as employing a “weighted caseload model,” the “gold standard” for “analyzing attorney need”).
[503]. Gideon Turns Sixty, supra note 89; see Mayeux, supra note 55, at 96 (“Occasionally, a heterodox legal scholar, such as the Yale law professor Fred Rodell, suggested that lawyers themselves were the problem, and that instead of trying to provide lawyers to more people, lawyers should work to demystify the courts so people would not need lawyers.”).
[504]. Model Rules of Pro. Conduct, r. 1.3, 5.1 (2023) (emphasis added).
[505]. Justice Denied, supra note 38, at 7.
[506]. The Rules provide no exception for lawyers who represent indigent persons charged with crimes. A.B.A. Comm. on Ethics & Prof. Resp., Formal Op. 06-441 (2006); see Baxter, supra note 138, at 358–59; Public Defenseless with Hunter Parnell, Ep. 58: Are Public Defense Unions the Key to Systemic Reform?, at 28:02–28:54 (Spotify, Oct. 26, 2022) [hereinafter Public Defenseless, Ep. 58].
[507]. See Mayeux, supra note 55, at 38.
[508]. See Ronald F. Wright, Parity of Resources for Defense Counsel and the Reach of Public Choice Theory, 90 Iowa L. Rev. 219, 230–42 (2004) (discussing salary and resource parity statutes in Connecticut, Kansas, Massachusetts, North Carolina, Tennessee, Wyoming, and local jurisdictions such as Orange County, California and Maricopa County, Arizona).
[509]. Sharon Bernstein, Striking Attorneys Agree to ‘Cease-fire’ with Sacramento County, Go Back to Work until Tuesday, Sacramento Bee (Sep. 6, 2024) https://www.sacbee.com/news/local/article292011220.html [https://perma.cc/4LPE-QKY8].
[510]. Minn. Stat. § 179A (1984); see Kiyomi Bolick, Harnessing Union Power for Public Defense, Inquest (Mar. 16, 2023), https://inquest.org/harnessing-union-power-for-public-defense/ [https://perma.cc/M8PP-VZTT] (“There had been whispers of trying to unionize in the past, but the lack of Colorado state laws explicitly authorizing public-sector unions had deterred earlier attempts.”).
[511]. 493 U.S. 411 (1990).
[512]. Id. at 423 (“It is, of course, true that the city purchases respondents’ services because it has a constitutional duty to provide representation to indigent defendants. It is likewise true that the quality of representation may improve when rates are increased. Yet neither of these facts is an acceptable justification for an otherwise unlawful restraint of trade.”).
[513]. See Myths and Misconceptions About Unionizing, About Us, Defs. Union of Colo., https://www.defendersunionco.org/myths-about-unionizing [https://perma.cc/S3PY-KU7Q].
[514]. Public Defenseless with Hunter Parnell, Ep. 54: The Public Defense Union Pushing to Change Colorado Public Defense, at 19:00–20:00 (Spotify, Oct. 12, 2022) [hereinafter Public Defenseless, Ep. 54]; see Kiyomi Bolick, Harnessing Union Power for Public Defense, Inquest (Mar. 16, 2023), https://inquest.org/harnessing-union-power-for-public-defense/ [https://perma.cc/M8PP-VZTT] (“One of the largest goals identified by DUC was moving our system toward workload caps. Excessive workloads and unsustainable working conditions are punishing our clients and us.”).
[515]. Maria Kollaros, Can Public Defenders Ethically Strike? (2022) (unpublished presentation) (on file with author); Antony Monzon, MN Public Defenders Union Authorizes Strike after Rejecting “Final” Contract Offer from State Board, KIMT3 (Mar. 10, 2022), https://www.kimt.com/multimedia/mn-public-defenders-union-authorizes-strike-after-rejecting-final-contract-offer-from-state-board/article_5094b04a-a0fa-11ec-be98-6bca08c70657.html [https://perma.cc/4WRV-EPEU].
[516]. Public Defenseless, Ep. 58, supra note 506, at 39:30–39:55.
[517]. See Andrew Manuel Crespo, No Justice, No Pleas: Subverting Mass Incarceration Through Defendant Collective Action, 90 Fordham L. Rev. 1999, 2002 (2022).
[518]. Sua sponte means “of one’s own accord” in Latin.
[519]. See Adam K. Raymond, Charges Dropped Against Remaining J20 Inauguration Day Protesters, N.Y. Mag. (July 6, 2018), https://nymag.com/intelligencer/2018/07/charges-dropped-against-all-j20-inauguration-day-protestors.html [https://perma.cc/P72E-Z7R3]. However, courts have utilized justiciability arguments to neutralize defendants’ class action suits against the public defender system. See generally Order Denying Reconsideration at 1, Hannah v. Oregon, No. A181795 (Or. Ct. App. Oct. 25, 2023) (dismissing a class action lawsuit against the state of Oregon because defendants facing months without being assigned an attorney did not sufficiently allege that their lack of counsel would likely evade review).
[520]. See Crespo, supra note 517, at 2020–21.
[521]. Id. at 2021.
[522]. Id.
[523]. Id.
[524]. See id. (“Similar stories of successful defendant collective action can be found in prosecutions of protesters arrested following the Seattle World Trade Organization protests in 1999, the Republican National Convention protests in 2000, the Dakota Access Pipeline protests at Standing Rock, and more.”).
[525]. System Overload, supra note 33, at 33.
[526]. Id.
[527]. See Mayeux, supra note 55, at 156 (“The National Defender Project had ‘set a standard for the future of defender services, and its successes far out-weighed its failures.’”).
[528]. To be sure, the respondents in Brillon offered a way to address unreasonable delay without classifying public defenders as state actors. Their proposed rule was that “pretrial time taken up by an assigned lawyer who enters a case and then exits it, without having represented his client in any real or substantial sense, is chargeable to the state under Barker, to the extent that these delays are the product of external state influences.” Respondent’s Brief on the Merits at 47, Vermont v. Brillon, 556 U.S. 81 (2009) (No. 08-88).
[529]. See Vermont v. Brillon, 556 U.S. 81, 93 (2009).
[530]. See Ex parte Young, 209 U.S. 123, 159–60 (1908) (holding that a state official may not claim Eleventh Amendment immunity for unconstitutional conduct committed in their official capacity).
[531]. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 701 (1978) (establishing that local government officials sued in their official capacity are subject to § 1983 liability). But see Saucier v. Katz, 533 U.S. 194, 209 (2001), City of Escondido v. Emmons, 586 U.S. 38, 44 (2019), and Rivas-Villegas v. Cortesluna, 595 U.S. 1, 7–8 (2021), where the Supreme Court has upheld or protected police officers’ qualified immunity in various circumstances. Of course, public defenders are not police officers and the different political controversies that surround them may yield different results from the courts.
[532]. Despite the common-sense concerns, this public defender model was contemplated in the 1950s when the public defender was first ideated. See Mayeux, supra note 55, at 37–38 (“[T]he progressive era public defender tended to be modeled after the public prosecutors, rather than the private defense attorney. Advocates imagined the public defender as ‘the complement to the district attorney’: both a counterweight and a mirror image to the public prosecutors, with similar hiring standards, resources, and duties. . . . Prosecutors had ‘all the money, the detectives, the process servers, the majesty and the awe connected with the public office representing the state.’”).
[533]. Kelsey S. Henderson & Reveka V. Shteynberg, Perceptions about Court-Appointed and Privately-Retained Defense Attorney Representation, 23 Criminology, Crim. Just., L. & Soc’y 45, 47 (2022) (“Over half of the [community member] sample perceived public defenders to be well-qualified (61%) and experienced (53%); however, half (50%) reported that public defenders provide inadequate legal representation for their clients. A majority of the sample (80%) recognized that public defenders have too little time to devote to their cases and that they must work without the resources that they need (55%).”); Bob Collins, A Day in the Life of a Minnesota Public Defender, NewsCut (July 1, 2008), https://newscut.mprnews.org/2008/07/a_day_in_the_life_of_a_minneso/index.html [https://perma.cc/CX47-52R3] (“The wheels of justice may move slowly, but some important cogs, like public defender Lisa Kloster, are spinning at a dizzying pace. Their ranks will thin by several dozen later this month when layoffs begin, thanks to legislators and Gov. Tim Pawlenty, who erased $1.5 million from the public defenders’ budget to solve the state’s budget deficit.”); The Ctr. for Holistic Def., Holistic Defense Symposium, Summary Report 2 (2014) (“Steinberg then addressed the oft-leveled charge that public defenders – whether holistic or not – are ‘cogs’ in the system. She acknowledged that while public defenders may constitute the ‘most outsider’ part of the legal profession, all lawyers are ‘insiders,’ and thus in some respects ‘cogs’ in the system. Yet there is still some good news: if just one cog is slightly off-kilter in a large machine, the whole system is impacted.”).
[534]. See Polk Cnty. v. Dodson, 454 U.S. 312, 332 (1981) (Blackmun, J., dissenting) (“The county’s control over the size of and funding for the public defender’s office, as well as over the number of potential clients, effectively dictates the size of an individual attorney’s caseload and influences substantially the amount of time the attorney is able to devote to each case. The public defender’s discretion in handling individual cases—and therefore his ability to provide effective assistance to his clients—is circumscribed to an extent not experienced by privately retained attorneys.”).
[535]. See id. at 331 (Blackmun, J., dissenting).
[536]. Reddy, supra note 58, at 11; see State v. Rush, 46 N.J. 399, 399 (1966) (holding the attorney was entitled to reimbursement for out-of-pocket expenses, and counsel was no longer required to absorb the full cost of defense of the indigent).
[537]. See Rush, 46 N.J. at 446.
[538]. See State v. Lynch, 796 P.2d 1150, 1153 (Okla. 1990) (holding an Oklahoma statute unconstitutional in application, and that the “statute provides an arbitrary and unreasonable rate of compensation for lawyers which may result in an unconstitutional taking of private property depending on the facts of each case”).
[539]. See Plaintiffs’ Petition for Review at 1, Hannah v. Oregon, No. A181795 (Or. Ct. App. Nov. 20, 2023); Brief of Amici Curiae Criminal Law & Justice Center, in Support of Plaintiffs-Appellants at 3, Hannah v. Oregon, No. S070654, 2024 WL 3791164 (Or. June 13, 2024) (arguing the “only solution to the Government’s systemic denial of counsel in violation of Oregon’s constitutional guarantee is prospective, class-wide relief”).
[540]. Reddy, supra note 58, at 17; see State v. Smith, 681 P.2d 1374, 1384 (Ariz. 1984).
[541]. See generally Stinson v. Fulton Cnty. Bd. of Comm’rs, No. 1-94-CV-240-GET (N.D. Ga. May 21, 1999); Rivera v. Rowland, No. CV-95-0545629 S (Conn. Super. Ct. July 7, 1999); Doyle v. Allegheny Cnty. Salary Bd., No. GD-96-13606 (Pa. C.P. May 13, 1998); Quitman County v. State, 910 So. 2d 1032 (Miss. 2005); White v. Martz, No. C DV-2002-133 (Mont. 1st Dist. Ct. Jan. 25, 2006); Best v. Grant Cnty., No. 04-2-00189-0 (Wash. Super. Ct. Nov. 2, 2005); Anderson v. State, No. 2004-005405 (La. 14th Dist. Ct. filed Sep. 23, 2004); Duncan v. State of Michigan, No. 07-0002420CZ (Mich. Cir. Ct. filed Feb. 22, 2007).
[542]. These cases were prompted by an Eleventh Circuit case, Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir. 1988), which held inter alia that the Strickland v. Washington IAC standard was “inappropriate for a civil suit seeking prospective relief.”
[543]. Reddy, supra note 58, at 20.
[544]. Id. at 21.
[545]. Id. at 20–21.
[546]. Doyle v. Allegheny Cnty. Salary Bd., No. GD-96-13606 (Pa. C.P. May 13, 1998).
[547]. Reddy, supra note 58, at 25.
[548]. See id. at 26.
[549]. See id. at 27.
[550]. Id. at 28.
[551]. See id. at 29.
[552]. Polk Cnty. v. Dodson, 454 U.S. 312, 314 (1981) (internal citations omitted).
[553]. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 701 (1978). In this case, the Court held that § 1983 can apply to local municipalities like counties, but that official policy must be “the moving force of the constitutional violation.” Id. at 694. A respondeat superior theory of liability, a legal doctrine that holds a party responsible for the actions of their agents, is outside these bounds.
[554]. When an official is sued for damages in an “official” (as opposed to “individual”) capacity, the suit will be treated as one against the official’s employer, possibly implicating qualified immunity or Eleventh Amendment state sovereignty. See Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart And Wechsler’s The Federal Courts And The Federal System 994–1009 (7th ed. 2015).
[555]. 889 F. Supp. 1146 (N.D. Cal. 1995).
[556]. Id. at 1200.
[557]. See id.
[558]. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended at 28 U.S.C. § 2254 (2012)).
[559]. Prominent legal minds have critiqued AEDPA. See Hon. William A. Fletcher, Madison Lecture: Our Broken Death Penalty, 89 N.Y.U. L. Rev. 805, 822–23 (2014) (“In the case of a mistake of law, it is not enough that the state court wrongly applied a Supreme Court decision. In order to grant habeas, we need to find that the state court unreasonably (not merely incorrectly) applied a clear rule established by a decision by the United States Supreme Court. It is not enough that the state court unreasonably applied a clear rule of the federal circuit courts. We can grant habeas only if the state court was unreasonably wrong in applying a clear rule of the Supreme Court.”).
[560]. See id. at 823–24 (“The wrongheadedness of the Court may be most easily conveyed by noting that Justice Sotomayor, a liberal, and Justice Alito, a conservative, agreed in separate opinions that we should be able to consider evidence discovered during federal habeas. What do these two Justices have in common? They are both former prosecutors. They are the only Justices who really know, from their own practical experience, how the criminal justice system works.”).
[561]. 18 U.S.C. § 3161.
[562]. See Brooks, supra note 127, at 602–03 (“Congress intended the Speedy Trial Act to compensate for the ‘ill-defined constitutional criteria’ of the speedy trial guarantee, as well as to give greater substance to the societal interest in speedy trials.”).
[563]. See United States v. Mehrmanesh, 652 F.2d 766, 769 (9th Cir. 1980) (“The Speedy Trial Act was passed at least partly because Congress was dissatisfied with the Supreme Court’s decision in Barker. . . . Therefore, Congress devised a scheme to circumvent the Barker opinion and put teeth into the speedy trial guarantee.”).
[564]. 18 U.S.C. § 3161(h)(7)(A); see Mehrmanesh, 652 F.2d at 770.
[565]. System Overload, supra note 33, at 27.
[566]. Id.
[567]. Id.
[568]. Assemb. B. No. 1209, 2023–2024 Reg. Sess. (Cal. 2023).
[569]. I learned about the internal structure of the Alameda County Public Defenders Office during my internship there.
[570]. See generally Angela Davis, Are Prisons Obsolete? (2003) (arguing for the abolition of the modern prison industrial complex, and consequently, the transformation of society).
[571]. See generally Cynthia Godsoe, Participatory Defense: Humanizing the Accused and Ceding Control to the Client, 69 Mercer L. Rev. 715 (2018) (describing participatory defense and arguing for its incorporation into defense practice).
[572]. See System Overload, supra note 33, at 29–30.
[573]. See id. at 30.
[574]. See id. at 31.
[575]. See id. at 32; Public Defenseless, Ep. 58, supra note 506, at 7:02–16:45.
[576]. See System Overload, supra note 33, at 32.
[577]. Alameda County Public Defenders, About Us, https://publicdefender.acgov.org/About.page? [https://perma.cc/8NTK-7LLH].
