The Court DIGd Boyer v. Louisiana. Interestingly, three justices–Alito, Scalia, and Thomas–concurred in the DIG. Four justices–Sotomayor, Ginsburg, Breyer, and Kagan—dissented from the DIG. Thus, it is pretty easy to count the five that voted to DIG. Those who concurred, plus the Chief and Kenendy.

In his concurral, Alito asserts that Justice Sotomayor misreads the record:

*The dissent also claims that “Louisiana conceded below that most of the delay resulted from the lack of funding for Boyer’s defense.” Post,at 8; see post, at 5, n. 3. But the dissent’s only citation is to the State’s argument in the alternative that even if the legislature’s failure to appropriate funds for the defense caused the delay, that delay should not count against the prosecution for purposes of Louisiana’s statutory speedy trial requirement. The State in no way conceded that it caused the delay in this case. Indeed, the very next paragraph of the State’s brief argued that “the defendant sought to delay the inception of his trial via his funding motion.” App. 317a.

Here is the Sotomayor footnote in question:

Louisiana previously conceded that the delay was caused by a lack of funding. See Brief in Opposition to Defendant’s Writ Application in No. KW–07–00085 (La. App. 3 Cir.), App. 317a (“In this case, because the defendant was without properly funded counsel for so long, the State simply could not ethically or legally bring him to trial. The indigent defense representation and funding situation is beyond the ability of the State to control”); see also Brief for Louisiana in No. KA– 10–693 etc. (La. App. 3 Cir.), App. 198a (same).

Sotomayor responds to that point here:

JUSTICE ALITO’s concurrence largely adopts Louisiana’s arguments, and contends that the majority of the delay should be attributed to Boyer’s requests for continuances in the trial court, and not the funding crisis. See ante, at 3. It is a mistake to second-guess the state court’s findings on this point, particularly because Louisiana conceded below that most of the delay resulted from the lack of funding for Boyer’s defense. See n. 3, supra. Contrary to the concurrence’s assertion, see ante, at 3–4, n. 1, this concession was not made arguendo. The most reasonable reading of the state court’s opinion is that it simply accepted Louisiana’s concession when it found that the “majority of the seven-year delay was caused by the ‘lack of funding.’” 56 So. 3d, at 1142. There is no reason this Court should comb through the record to allow Louisiana to turn its back on this prior position, and risk substituting this Court’s judgment for that of a state court on a question that is closely intertwined with state procedural rules. These matters of state law are better suited for the Louisiana court to address in the first instance on remand.

I haven’t read the record at all, but I think the two Justices seem to be talking past each other. Alito says the state conceded nothing, and only took this position assuming arguendo. Sotomayor says that the Court should defer to the lower court’s reading of the state’s position, which found that the issue was conceded. In other words, Sotomayor would not allow the state to change its prior position.

I don’t know who is right here.

In any event, Sotomayor has some rather expansive language in her opinion, that addresses some larger problem:

The Court’s failure to resolve this case is especially regrettable, because it does not seem to be an isolated one. Rather, Boyer’s case appears to be illustrative of larger, systemic problems in Louisiana.

The Louisiana Supreme Court has suggested on multiple occasions that the State’s failure to provide funding for indigent defense contributes to extended pretrial detentions. See State v. Citizen, 2004–1841, pp. 14–17 (La. 4/1/05), 898 So. 2d 325, 336–338; State v. Wigley, 624 So. 2d 425, 429 (La. 1993); State v. Peart, 621 So. 2d 780, 791 (La. 1993). There is also empirical evidence supporting that assessment. In New Orleans Parish, for example, a recent study found that more than 22 percent of pending criminal cases were more than one year old. Metropolitan Crime Commission, 2011 Orleans Parish Judicial Accountability Report 1 (July 2012). Another study found that the average time between felony arrest and trial in Calcasieu Parish, the jurisdiction where Boyer was tried, was 501 days in the years before Boyer’s arrest. M. Kurth & D. Burckel, Defending the Indigent in Southwest Louisiana 27 (2003). More broadly, the public defender system seems to be significantly understaffed. See E. Lewis & D. Goyette, Report on the Evaluation of the Office of the Orleans Public Defenders 28–29 (July 2012) (noting that in New Orleans, public defenders handle approximately 277 felonies per year, which is nearly twice the number recommended by ABA standards (citing ABA Formal Opinion 06–441 (2006))); National Legal Aid & Defender Association, In Defense of Public Access to Justice, An Assessment of Trial-Level Indigent Defense Services in Louisiana 40 Years After Gideon 35, and n. 119 (2004) (estimating that public defenders in Avoyelles Parish handle approximately 792 felony cases per year, or 528 percent of the ABA caseload standard). Against this backdrop, the Court’s silence in this case is particularly unfortunate. Conditions of this kind cannot persist without endangering constitutional rights.