 Good morning and welcome to House Judiciary Committee Vermont House Judiciary Committee. I am Maxine grad and I am the chair of the committee and we are continuing our testimony and discussion about the Vermont justice system. And I thought it would be helpful to invite Professor Robert sand of Vermont law school to talk to us about the justice system and the evolution of the Vermont justice system we used to refer to it only as a criminal justice system and Robert sand and if I can call you Bobby, which I'm used to has a lot of experience which I hope you will share with the committee. Not only as a professor but as prosecutor and really a scholar and an expert in the justice system so I really appreciate you being here and we've given you I realize that we're running late. But we did want to make sure that you had some time to, to talk to us and then answer any questions. So, welcome and thank you. Thank you so much for having me thank you all for your service during incredibly challenging times and thank you for the opportunity to wear a tie. It has been a long time since I've had one on for the record Robert sand, my preferred pronouns are he has Bobby is fine. I am a professor Vermont law school, I am the former elected Windsor County State's attorney, a position that I held for a little over 15 years. And I am the high bailiff elect for Windsor County. What you might ask does the high bailiff do and we do not have enough time this morning to discuss the myriad roles of the high bailiff, though I may if time allows share one thought at the end of my comments. What I thought I would do, assuming the technology allows something that I did at the start of the last biennium, which is a walkthrough of the life of a criminal case in Vermont. It is both pretty basic, but I think also quite illustrative of some issues that I know you will be looking at during this biennium. And I really hope if that's all right, as we go through if any questions arise. Please ask because I do think it's helpful for folks to have a common starting place. But with any luck. And Mike said this was going to work I'm going to try to share my screen. And we'll see. Yeah, well, the host disabled screen sharing. You need to make your co host. And if that can happen without crashing the system awesome and we can, I can certainly go to plan B. Your co host it should work now. All right, let's see. Let's go to that. And can folks see that I'm sharing my screen. Yes. Yeah. Okay. What I'm going to do is, as they say, rip a case from the headlines, move it to Vermont and walk through the life of a case. And I want you to assume that this is taking place in the remote, the most remote location within your county. So let's say that a person claims that will say that this is a woman that her cell phone was stolen. And she identifies the person who she says stolen. So we often refer to the person who is making a complaint as the victim. Of course, we don't use that term until there has been a conviction. And we oftentimes refer to that person as the putative or alleged victim or the complainant. But for purposes of this exercise, I put the label victim there. And then we have an accused. So let's assume that the complainant the victim calls a law enforcement officer who responds that officer will speak with the complainant that officer will speak with the suspect, and may then decide to make an arrest. So, putting on my law professor hat for a moment. Does anyone know the amount of evidence or the standard of evidence that a police officer must have in order to make a lawful arrest. There's a term for that standard or amount of evidence. I'm not sure I can see all hands so anybody has the answer or answer. Jump in. I know the answer. And the answer is probable cause to make a lawful arrest. Police must have probable cause evidence sufficient to lead a reasonable person to believe a crime was committed. And that the accused probably committed the crime. It's not a huge amount of evidence, but it's more than a suspicion and what's the purpose of probable cause it serves as a filter. It's designed to keep out of the system cases that are based purely on suspicion. It requires some amount of evidence in order for a case to go forward. So the officer makes an arrest and comes back to the station and will typically ask a dispatcher or an administrative person to run a criminal history on the accused, and the officer will prepare a packet that will go to a prosecutor, and this packet will include a sworn statement called an affidavit of probable cause. It is very often reviewed by a superior officer, and then it is notarized. And this case has been logged in, prepared, a packet is prepared, and it gets sent to the state's attorney's office, where an administrator within the state's attorney's office will intake the case. So if you log it in, it very often then because this is a victim case is shared with a victim advocate who is embedded within our state's attorney's offices, and then it's going to be reviewed by the state's attorney or perhaps a deputy state's attorney. If I could, you said something about raising hands earlier, did you want to do it as you go longer at the end? I think, Bobby, I think you said people should jump in. Please jump in. Okay. Yeah, I just, when, with screen sharing, I'm not sure I can see everybody so. I see. Sorry. Right. Has his hand up. I do. Welcome, Bobby. Good to see you. Thank you. Nice seeing you. Yeah, so. Oh gosh, if I can remember. Okay, so law enforcement officer has probable cause requests dispatch to do the background check comes up with the guy, the person's history. And then that goes to where? So once the packet is complete, it goes to the prosecutor's office. Okay, so I guess my question would be, what is the reasoning for the history going to the prosecutor? And the reason I'm thinking of that is if somebody has committed a crime, you know, served their, their sentence, you know, fines, you know, whatever. Why, at this point, why is that important if, in a sense, that's not an issue anymore. Or better or for worse, we tend to compound consequences within the criminal justice system. So that we treat an individual who is a first timer differently than we would someone who is a recidivist or a repeat offender. So to inform all of the players within the system about the context of the new offense, we have said it is relevant and helpful to know about the personal, the person's prior history. They also be relevant if that history reveals that the individual repeatedly flees the jurisdiction or fails to appear in court. That may inform what happens as the process moves forward. The General Assembly, somewhat reflective of your question, Representative Burt, has recognized that maybe people ought not to be haunted or shackled by their prior criminal histories and perpetuity. And so you've expanded your expungement laws and expunge records would not appear on that criminal history, but anything that isn't expunged would remain there. Great. Thank you. Thanks for your question. Alright, so the state's attorney or the deputy decides that filing a charge in this instance, a petty larceny would be appropriate that taking a tangible personal property with the intent to permanently provide the owner of that property with a value under $900. What amount or quantity of evidence does the prosecutor need in order to lawfully and ethically file that petty larceny case in court. What's the standard for the prosecutor. It is a rhetorical question and answer for you that the standard for the prosecutor is also probable cause a prosecutor may not ethically file a charge in court unless it is supported by probable cause evidence sufficient to lead a reasonable person believe that a crime was committed and that the accused probably committed that crime. Representative Burt. It seems like in the past when we talked about things like probable cause did the one time we put a percentage on it. A scooch over 50%. I mean, I'm not I know that there have been cases that are low to put a percentage number on the criminal justice system. And so it's, it is a probability. And I don't have a and I know pepper was listening and maybe when he talks he can share a thought but but I think generally it. The standard has been a probability and I think that the criminal courts have been low to give that a percentage. And I see representative bird you made it me you may have frozen so I'm not sure if you're getting this. But so I'd like you to know this is the second time that there's been a probable cause finding. We'll come back to that in a moment. Okay, so it goes to court and a docket clerk is going to intake or input the case. The law enforcement agency input of the case, the prosecutor's office input of the case. A court clerk is going to input the case and it's going to go to the judge and the judge reviews the case now, which will be the police documentation and the prosecutors charging document, which we call an information. Unlike many jurisdictions that require grand juries at least grand juries for more serious cases. We never require a grand jury in Vermont and so prosecutors can file. Based on their own judgment, the what we might say are low level charges and can file the most serious charges in Vermont multiple homicide based simply on this document called an information filed on the prosecutors oath of office. So what standard of proof what amount of evidence does the judge need in order to decide that the case is properly and validly in court and the answer is probable cause our third instance where an actor has to say that there is at least evidence sufficient to lead a reasonable person to believe that crime was committed. Probable causes designed as a filter as I've mentioned to keep out cases based on pure speculation, but it is a pretty low standard and it's worth considering whether it ought to just be probable cause for the police probable cause for the prosecutor and probable cause for the judge. Nevertheless, the judge finds probable cause the case gets called and a defense attorney gets assigned because let's assume that our accused is indigent. Initial appearance or arraignment takes place the person gets released on conditions to have no contact with the victim, the defense attorney goes back to their office and the case gets logged in to that system as well. So let's see that's 123 that's the fourth instance that the paperwork is being logged into a system. Let's enter what's known as the discovery phase where information is exchanged, maybe motions get filed but let's assume that no agreement is reached, and the case is actually going to come on for a jury trial. Well, we tend to use juries consisting of 12 people often with two alternates, but to arrive at that jury, the court will call in in the panel as they say but I don't know 30 to 40 people. And that list gets windowed down to your 12 typically 12 person jury trial is held. Now the prosecutor has the burden beyond a reasonable doubt to establish each and every essential elements of this crime, taking of tangible personal property with the intent to permanently deprive the owner of that property. Let's assume that there is a conviction. And the court denies post trial motions, it comes on for sentencing the prosecutor asks for jail incarceration, but suspended, held in abeyance, the court agrees and the person is put on probation. That means that a probation officer is assigned a copy the paperwork goes to the probation to the officer, and that office as well will do an intake and log in all of the paperwork. So, I'm going to hold it there and just ask if it's right. And I'm also happy to volunteer, whether there are any reactions to the schematic and I believe that that does anyone have any reactions to the to the walkthrough. Rep. Cobra. I have a reaction. This is just looking at all of these players, right all of these individuals and who are involved in the system and sort of noting that the role for like the community is actually pretty limited in the system. Right. It's just like I mean I know that the prosecute the state's attorneys are, you know, there's people who are standing in for the community but the community itself that might be impacted beyond sort of one individual is is not. We could I guess we could debate about how well represented they are in the system so that was one reaction I had. One of the things we certainly know is that wherever this event took place whatever that remote location was in your county, we've outsourced it to a central location where the state's attorney in the criminal court is. So we. There's some authors who talk about outsourcing of harm and outsourcing of our response. We certainly do that in the traditional system. Anyone else. I think Barbara has her hand up. Oh. Hello. So it's interesting because my first thought was, oh it takes a village, but my second thought was one, what is the cost thinking of all the hours that go into it with the central goal of mostly trying to get the person into the criminal justice system rather than saying, Oh my gosh, why did you steal credit cards to get food and medicine for your children and again, just sort of thinking about if we took that amount of effort and use it in a different way, what would the outcome be and what would the recidivism right be. I hope those great questions permeate all of your discussions over the next two years. I think there are. I can't remember 12 or 13 responsive actors to this alleged defense here, and they are all funded through taxpayer dollars. Because it is worth pondering. Do we want this to be how we're spending taxpayer dollars and off there to be other other approaches. What we know is well I guess I'd say this, given how much humanity has to respond to, to one single criminal charge. I think we need to be think carefully about, is this the kind of case that properly should be in the criminal justice system, because it, it, it's expensive it's time consuming. We haven't even talked about how many touches each person has to that case, we've just talked about the number of people involved. So, thinking carefully about whether something really needs to be a crime or not is, is, is appropriate. What is also suggested here, and by some of the comments and questions is the real import and value of having off ramps. Are there ways that a person can be diverted away from this centralized system in a way that allows for accountability in a way that is meaningful and valuable for the complainant. But perhaps also in a way that ends up strengthening community and strengthening relationships. What we know is that different prosecutors use our existing off ramps to different degrees and different extents. And I know this committee in years previously has spoken about this issue of geographic justice. And that's really, that really is a factor. We don't have one criminal justice system or one criminal legal system. We have 14 systems, one for each county. And I know you'll hear from Willow Farrell I think maybe tomorrow from diversion, and she may be able to talk to you about the different utilization rate of those off ramps by county. And it is worth pondering if the exact same behavior happens on one side of a county line versus a different side of a county line, should the outcome be dramatically different. The aspect of this is the utilization rates of Department of Corrections resources to include probation. One county is using community based responses, but another county is using probation or correctional responses, and those use rates are dramatically different. And effectively what is happening is that the taxpayers of the low use rate counties are subsidizing the use for the high use rate counties. So if County A only uses corrections 10 times a year, and County B uses corrections 40 times a year, since we have a centralized system, effectively the taxpayers of County A are helping are overpaying based on their county to subsidize County B. And maybe there are dramatic differences in the types of offense, or people who commit offenses between County A or County B, or maybe it's just a philosophical difference. So it's worth looking maybe in combination with institutions, are their disparate use rates and for corrections resources, and is that do you want to address that in any way. I know last by name representative Kimball had legislation that would look at creating a formula, and a county could use corrections above and beyond their allocation. But if they were to do that, they'd have to independently raise some revenue. I promise you if you were to do that incarceration rates would drop dramatically. But as long as we collectivize how we're paying for it. There's not really huge incentive for any particular prosecutor to be really careful and judicious necessarily about corrections and I'm not suggesting and I know peppers probably fuming now that prosecutors willy nilly are sending people to jail that because that absolutely isn't happening. But it is true that there are disparate use rates. Two more things I want to say and then I'll stop laughing. In the scenario that I shared with you. The accused, the defendant was assigned counsel a public defender. If however, and represent Gosling I'll get to you just one second if the prosecutor had said that they were only seeking a fine. And if the judge said, the court will only impose a fine when you get sentenced. Our accused would not have been entitled to a public defender, even if they were indigent, because Vermont law says you only get a public defender for a quote serious crime close quote. The law went into effect in Vermont at a time and we did not appreciate the lifetime disabilities that a criminal conviction can create. Harkening back to Representative Burnett's question earlier. Many states say any indigent person charged with a crime is entitled to a public defender. And I hope that the committee. The last biennium will repeat what it did last biennium and H 342 and amend Vermont law to say that if something is serious enough to be treated as a crime. We think it is important that an indigent person have the benefit of counsel. The Defender General testified during the last biennium that since they already represent the vast majority of indigent people. This change in the law would not have a dramatic impact on their workload, but from a standpoint of fairness and justice and belief in the presumption of innocence. Every indigent person regardless of the nature of the crime in my judgment should be afforded the right to have a public defender. Representative Gosling. Thank you. Is it that what you're talking about isn't that the reason why we have for 14 different states attorneys though that represent each county. It is true that we have that and a and a byproduct of that is that the individual states attorney puts his or her on to the justice system with it within the county. And so maybe you could maybe that is a good thing, or maybe if in fact we are striving for a justice system, we will find ways to create greater uniformity, so that crossing the county line doesn't yield a dramatically different outcome. There are some states I know New Jersey comes to mind that I'm not advocating this, where the AG appoints each of the county prosecutors, and the goal there is broader uniformity. I think there is benefit to individually elected prosecutors because the county then gets to operate a little bit like a laboratory, much like the states do in relation to the federal government. But I think there's value for all of you to be aware of what the differences in approaches are across county lines, because you may decide that there is enough disparity enough difference in approach that finding ways to create greater consistency and greater uniformity is worthwhile. I don't know if that's responsive to your question or not. Well, it is but in my mind is a reason why we elect county attorneys or, you know, I mean, I think each each county population made up of the people that are there is vastly different. I mean, Washington County certainly is very different than then. I think that's true, and I'm not suggesting absolute uniformity. What I'm suggesting is awareness of the discrepancies and disparities becomes worthwhile and figuring out perhaps how to incentivize behaviors or outcomes that you think support the system as a whole. When I was a deputy and a state's attorney, my office got funded based upon the number of cases we filed. I don't know whether that's still the case and maybe pepper can address that or or John Campbell, but think about the incentive that that creates that creates an incentive to file charges and in some instances, multiple charges. We could say you are going to be funded based upon how many cases you're able to resolve at the community level without filing them in court. So we can incentivize the kind of behavior that we want. Final note, perhaps about high bailiff because it is it's related to a representative Gosling's question. The high bailiff is some of you may know, historically does very little the statutory role is to arrest the sheriff. And that needs to happen and to serve in that role until a replacement is is made and it is not uncommon for the high bailiff to do absolutely nothing during the term of office, which is why I feel ideally suited for the job. I do think there could be a role for the high bailiff. That role could be to report on the state of the justice system within a county. You're going to hear lots of reports you've probably already received lots of reports by individual actors within the system prosecutors defense corrections diversion. I have an entity within the justice system who puts the package together to say, here's the state of the justice system within the county. And I think that creates a difficulty to say, well, how does Chittenden differ from Rutland, how does LaMoyle differ from Bennington, and it might be useful to have an independent actor within the system, like the high bailiff deliver a biannual I always get biannual and biannual every two year report to you about the snapshot of the justice system within the county as a way to get a better sense of how is the justice system operating statewide and how is it different across county lines. I know Representative Gannon had a bill last year to look at the high bailiff I'm hoping he will introduce another one and perhaps this committee working with institutions. I think that's the right committee or government operations. If that would be useful, we'll think about a redefinition of the role from for the high bailiff. Happy to answer any questions and I know I've probably run over. So actually, before we call on Martin and coach just want to say that James Pepper very graciously said that he will wait till after the break, which I appreciate because I know we started late and, and, and I did put in committee discussion time and as a buffer after the break because I had a feeling that there were lots of questions for you for you Bobby so again thank you. Thank you, Pepper. Okay, so Martin and coach, and then Bobby I'll let you return to be a professor and calling folks and then Barbara is okay. Yeah, thank you it's always good to hear from you, Bobby. So, there is an effort right now to improve the data that we get on the criminal justice system. In fact, we should see at least probably two bills that are going to be coming our way. One following the Connecticut, what they're doing down in Connecticut, another probably more of a just very general open ended short form bill as I understand it. I want to comment on that I mean there's the justice reinvestment. One of the initiatives was a work group that came together and has come forward with the report that came out in early December I'm not sure if you had a chance to see that. There's the primary author behind that if if an organization or group can be an author but the idea is really to identify all the high impact high discretion decision points of prosecutors and courts and start collecting data on all 14 counties and and work from there and so you just presented a slightly different idea of the high bailiff having some role in all that and I wonder if you have any comments about that other initiative and how what you just talked about could fit into that and maybe this is not the time and when we get those bills that's have you come to talk about it so any of it. They sound really complimentary to me. And I, if I'm being candid, accurate data is probably ought to be the number one priority. The system has operated on anecdote for such a long time, and our systems have not communicated particularly well, you know, part of the schematic is the number of times, the exact same information is getting logged in by multiple players. There's some inkling that there may be an effort to to address that, but that feels really important to me. I do think that that you will lose some shading some nuance some flavor, if it is data alone, and I think that a high bailiff. High bailiffs could collectively sort of round out the picture, but it certainly would not. If you had to pick one or the other I would say the data driven information will be more useful more illustrative and more important for you all. And just one quick comment, one of the interesting things that came out during discussions of that group because I sat in on those was in a recognition that stories are really important to go with that data. I mean those anecdotes are stories to really give the data a little bit of flavor and so maybe that's a bailiff's in part role in that. We have this independent actor within the system who does nothing. And maybe there's something they could do. And if it is unfair to impose a new responsibility on the current crop of high bailiffs, you can make an effective date. It's a it's a weird thing it's a two year term. It could become effective two years hence representative Christie. How are you doing buddy. I'm good nice to see you. Good to see you. I'm sorry I was late we had the caucus meeting, and we're probably going to be adjusting times as we go but this one was pretty cool. But thinking about the comment of, you know, aggregating information and utilizing my bailiff, you know, to do that. It actually makes sense. But then we have to look at some of the other questions that I that I heard around, you know, the why, and the fact that we have these 14 different, you know, entities. And we almost have to look at the history of where all of that came from. And in order to have a good understanding of why, you know, and actually it goes back to reconstruction. And after the Civil War, because that's when the country through the states, you know, and you start breaking it down started to have those county seats. The country was so big. And we became very concerned about local control, which we still are, and not just in Vermont. It was, it was the ethos of America. Okay, so, so all of that stuff started a long time ago. Things have changed, obviously. And with that, our thinking should. But it hasn't. So so a lot of these these systems are antiquated for lack of a better way and I think that's the thing I've noticed in my short tenure, you know, at least in the body, you know, looking at the, the statutory structure. So, personally, I'd be very open to, you know, taking the data that is critical. And then, you know, taking the dialogue and overlaying it and looking at how do we restructure that for the best information, especially for the legislature. Because what we get is either or, it seems, you know, either we get a lot of testimony about stories and not enough data to really back it up, or we get all of this data and not enough stories to back it up. You know, it doesn't seem like we get a consistent blend, you know, of it. And that's why we asked for these different reports, you know, because we didn't get what we were expecting from one or the other, you know, and that seems to be an anomaly that we deal with as, as the legislature so. But you're, I think that idea, for me, at least it resonates. So, so thanks for sharing that. And thanks for stepping in and, and at least for Windsor County and running for high bail. Thanks for coming. If I do want to respond or if not, I'll move to Barbara. Great. So Barbara, let's take your question or comment and then we'll, we'll break it at 10. So Barbara. Thank you. Thank you. It's great to have you come in chat with us. So, I have a two part I have two questions and I'm hoping that they're not going to be super long, but it seems like one of the issues is as a criminal justice system, or 14 systems. You don't have a clear underlying philosophy that doesn't conflict, because obviously retribution conflicts with rehabilitation deterrence. I mean, it just seems like it's a mush, and so you could sort of just ride one of them. But then you're not dealing with the other ones and until we have a clear underlying philosophy as a state it seems we're going to be all over the map. So one of the things that's been great at Vermont Law School. I started the Center for Justice Reform and we have the first restorative justice master's degree at a law school in the country and one of the courses that has been percolating is a restorative rewrite project, where we would take historical documents and rewrite them in a restorative fashion. I think it would be a really interesting exercise. If you all could go on a retreat and try to write a preamble to the Vermont criminal code. If you could agree, what should the underlying philosophical underpinnings be of a Vermont criminal justice system, because if I don't know. Many of you I haven't met before today, but if you all could agree, that would be quite an amazing document. And you are right. We don't have a unifying philosophical statement or purpose. And as a result, we do have a bit of a hodgepodge of as Coach Christi was saying some sort of really old fashioned antiquated laws of contemporary laws. It would be mixed terminology, and it lends itself to disparate outcomes. If we had a unifying philosophy on a unifying, I don't know mandates a little strong but direction, I do think that would be helpful and then really an interesting exercise to try to create that document. Thank you. So my other question is this, we keep hearing about the lack of, you know, with coven, there have been people awaiting jury trial for really, really long time. And I'm not seeing or hearing from people that have come to testify so far, basically you're like that's how it is. I'm wondering if you could comment on your view on the fact that we have people sitting in jail, awaiting a jury trial that is going to be a while still. I'm going to initially slightly answer different question which is, I think we have learned that we don't necessarily need to impose bail on as many people as we historically did. And so that's probably a good lesson. I feel enough removed from the day to day operation of what's going on in court to not have really great insight into pre trial detention. I don't think we are casually doing that. I think the court and prosecutors and defenders have an obligation to look really hard at people who are so called the detainers being held pre trial, whether there are community based approaches that would allow them not to be held, both because being held in a correctional center is a huge imposition of liberty, and there's now this dramatic public health overlay to being incarcerated in light of COVID. But I don't feel comfortable like saying there are particular cases where the pre trial detention is not appropriate. Thank you. So committee will take a break now until 1015 and then, and then Bobby would come back and we could spend about, you know, another 1520 minutes or so with you, and then we'll move on to to the state's attorneys. Okay, so you'd like me to come back after the break. Does that work for you. I'm happy to do that. Okay, great. Bob, did I see your hand up or Oh, Mike, in terms of there's some question of whether or not we could, we could on live or if we have to sign in or out again I know we got a number of zoom links so Mike what's I'm going to leave this one open through the break and we'll continue I won't shut it down until lunchtime. Okay, great. Thank you appreciate it. Okay, so, so why don't we turn off our cameras, take a break and then and then let's get back by by 1015. Thank you.