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A Practical Supreme Court

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One of the strangest doctrines in the criminal law is that a prevailing party can have its judgment taken away because of the misconduct of the opposing counsel. Just imagine the screams from the tort plaintiffs' bar if appellate courts started overturning their judgments for ineffective assistance of defense counsel. Yet it happens every day in criminal cases. The Ninth Circuit has an unwritten de facto rule that every defense attorney whose client is sentenced to death is ineffective.

Today in Vermont v. Brillon, the Supreme Court declined to start down a similarly strange road. When a defendant claims a violation of his right to speedy trial, "delays caused by defense counsel are properly attributed to the defendant...."

The vote was 7-2-0, with Justice Ginsburg writing the opinion of the Court. Justices Breyer and Stevens do not disagree with the proposition quoted above, but they do not think the case actually presents that question.

Justice Ginsburg's opinion has a decidedly practical bent to it. She sees the consequences of the rule Brillon proposed and the Vermont Supreme Court bought. She foresees sandbagging by defense lawyers who know that if they manage to delay long enough, their client will get off altogether. She foresees that possibility as making trial judges skeptical of time extension requests from the defense. If the defense lawyer actually needs more time to prepare, an extension request could cause reversal for speedy trial delay if granted and reversal for ineffective assistance if denied. That road leads to nothing but a swamp. Better not start down it.

This case illustrates once again how the practical, albeit defense-leaning, jurisprudence of Justice Ginsburg differs from the implicit rule of "vote for the defendant nearly every time and damn the consequences" that we saw with Justices Douglas, Brennan, and Marshall. We survived eight years of President Clinton with the Constitution intact, in part because he was not all that interested in appointing hard-core activists to the Supreme Court and in part because Republicans had enough strength in the Senate to stop him even if he wanted to. What awaits us for the next four or eight years remains to be seen.

Meanwhile, back at the orders list, the Court turned down both parties' petitions in the North Carolina case of murderer Dr. William Gray. Like Brillon, it was a case of a defendant seeking a reversal for matters that were primarily his own fault, as noted here. Even a practical Supreme Court can't reverse every wrong decision in this area.

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Opinion was pretty short and sweet too.

I find it amazing that a guy who threatened to kill his court-appointed attorney could ever be heard to complain about delays.

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