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Defendant’s behavior counts against him for speedy trial purposes, but doesn’t show he was incompetent to represent himself

State v. Ennis Lee Brown, 2015AP522-CR, District 1, 10/9/15 (not recommended for publication); case activity (including briefs)

The 14½-month delay in trying Brown didn’t violate his right to a speedy trial, as “all of the delays are attributable to the defense, and most are attributable to Brown’s poor behavior and inability to work with his assigned counsel.” (¶56). At the same time, the trial court didn’t err in allowing Brown to proceed pro se at the start of trial, as Brown’s “poor behavior and inability to work with his assigned counsel” don’t show Brown was incompetent to represent himself.

Speedy trial

Like other cases in which speedy trial is an issue, the opinion in this case is fact-intensive; it is also unusually lengthy. For purposes of this post, readers should know Brown was charged with many counts of abuse of his children and, based on the transcript excerpts included in the opinion, could be a difficult, belligerent person. His first lawyer filed a speedy trial demand, but then—over Brown’s vehement objections—asked for an adjournment of the first trial date because he needed more time to prepare. The court adjourned the trial for six months. It turns out Brown’s first lawyer’s license was suspended twice during his representation of Brown, for a total of about seven weeks, and he did not visit Brown in jail to prepare for trial before the pretrial hearing in advance of the first trial date. The first lawyer was allowed to withdraw because of Brown’s aggressive behavior toward him at a pretrial hearing, and a second lawyer was appointed. The second lawyer was allowed to withdraw over conflicts with Brown about the filing of pretrial motions. The third lawyer appointed for Brown moved to withdraw because Brown wanted to proceed pro se. Brown was allowed to proceed pro se with standby counsel, but only after a competency evaluation, which delayed the setting of the final trial date. (¶¶2-30).

On this record, the court of appeals finds no speedy trial violation because all of the delay is attributable to the defense in general, and most of the delay is attributable to Brown’s behavior in particular. (¶¶37-56). The court rejects Brown’s arguments that any delay due to his first lawyer’s license suspension shouldn’t count against him because the State Public Defender should have replaced the lawyer upon learning of his suspensions:

¶43     Generally, “delays caused by defense counsel are properly attributed to the defendant.” Vermont v. Brillon, 556 U.S. 81, 94 (2009). However, an exception to that general rule exists when the delay “result[s] from a systemic ‘breakdown in the public defender system.’” Id. (citation omitted). Brown claims that such a systemic breakdown occurred here when the SPD knowingly left Attorney Hicks on Brown’s case even though his law license had been temporarily suspended. We disagree.

¶44    When the SPD discovered that Attorney Hicks’s license to practice law had been temporarily suspended on September 27, 2012, it followed established procedure. [SPD Regional Attorney Manager] Reed testified that when the SPD discovers that an appointed attorney has been suspended, it investigates the suspension to determine whether the reason for the suspension is something that signals unfitness to practice or is simply some sort of noncompliance with an order or rule. The SPD then determines whether the lawyer is going to be unable to continue his representation or whether he will be able to resume his representation in a timely way. If the suspension is caused by noncompliance that can be remedied quickly, the SPD does not invoke the formal process that would be necessary to replace the attorney.

¶45     Here, the SPD determined that there was no reason to appoint a different attorney for Brown because, by October 16, 2012, Attorney Hicks remedied the compliance problem that resulted in the first temporary suspension of his law license. Attorney Hicks’s license had been reinstated by the time any action could be taken.

¶46     Because the SPD followed standard procedure after Attorney Hicks’s law license was temporarily suspended on September 27, 2012, there was no “systemic ‘breakdown in in the public defender system’” that would necessitate attributing that time to the State. …. Additionally, the entire suspension was nineteen days. …. [T]he exception for a systemic breakdown in the SPD system does not apply to the nineteen-day suspension where the SPD followed its regular and reasonable protocol of investigation. ….

The same is true of the lawyer’s second suspension, which lasted about one month. (¶48).

The court also rejects Brown’s argument that his first lawyer’s failure to meet with Brown before the first trial date shouldn’t count against him. Generally, “delays caused by defense counsel are properly attributed to the defendant,” Brillon, 556 U.S. at 94, as assigned defense counsel’s “‘inability or unwillingness … to move the case forward’ may not be attributed to the State simply because [he is] assigned counsel,’” id. at 92-93 (citation omitted). (¶49).

Competency to proceed pro se

While Brown knowingly and voluntarily waived the right to counsel, he argues he was not competent to represent himself because he was incapable of effectively communicating with others and/or had a psychological disorder, as evidenced by his erratic, paranoid behavior, which led to two separate competency evaluations. (¶¶14-15, 26-29). But both evaluations found Brown competent to stand trial, if not represent himself, and the trial court properly relied on them in finding Brown competent to proceed pro se:

¶67     The competency reports provide sufficient evidence in the record to support the trial court’s conclusion that Brown was competent to proceed pro se. See [State v.] Imani, [2010 WI 66,] 326 Wis. 2d 179, ¶37[, 786 N.W.2d 40]. The trial court properly relied on Dr. Pankiewicz’s observations that Brown understood both the complexity and consequences of the case, and that Brown had the intellectual capacity to communicate in a coherent manner. Furthermore, the trial court properly relied on Dr. Pankiewicz’s conclusions that Brown’s outbursts in court, while demonstrating poor judgment, were not the result of a mental disease or defect, but rather a calculated choice.

¶68     In so holding, we reject Brown’s assertion that the trial court erred in relying on Dr. Pankiewicz’s reports because the reports only found Brown competent to stand trial, as opposed to competent to represent himself at trial. The trial court clearly did not only rely on Dr. Pankiewicz’s finding that Brown was competent to proceed. Rather, the trial court also relied on Dr. Pankiewicz’s findings that Brown did not lack substantial capacity to understand court proceedings, that Brown was able to communicate in a coherent manner when he chose to do so, that Brown did not suffer from any mental disease or defect, and that Brown’s outbursts in court were unrelated to competence and instead related to his outrage at the charges in the case.

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