In Moreno, CAAF held that delay caused by appellate defense counsel’s workload is attributable to the government, because the government “must provide adequate staffing within the Appellate Defense Division to fulfill its responsibility under the UCMJ to provide competent and timely representation.”
United States v. Moreno, 63 M.J. 129, 137 (C.A.A.F. 2006). In Vermont v. Brillon, 129 S. Ct. 1283 (2009), the Supreme Court generally declined to attribute delay caused by defense counsel to the state for speedy trial purposes, though the Court noted that “[d]elay resulting from a systemic breakdown in the public defender system could be charged to the State.” Id. at 1292 quotation marks and internal citation omitted).
In Ashby, CAAF declined to consider Brillon‘s effect on military post-trial delay jurisprudence. Judge Erdmann — who wrote both Ashby and Moreno — states:
The Supreme Court recently held that the general rule, that a delay caused by a defendant’s counsel is charged to the defendant, applies equally to privately retained or publicly assigned counsel. Vermont v. Brillon, 129 S. Ct. 1283, 1292 (2009). The Court noted, however, that this rule was not absolute and that delay resulting from a systemic breakdown in the public defender system could be charged to the state. Id. The impact of the Brillon decision on this court’s jurisprudence was not briefed nor argued in this appeal and it is therefore not appropriate for the court to address at this time.
United States v. Ashby, __ M.J. ___, No. 08-0770/MC, slip op. at 35 n.10 (C.A.A.F. Aug. 21, 2009).