 Hello. Welcome to the Judge Ben Show. My name is Ben Joseph. I'm a retired Vermont Superior Court Judge. This is a program in which I interview people about issues that concern the Vermont legal system. I'm very pleased today to say that I'm going to be able to interview David Slay, a Vermont attorney in private practice. David, welcome. Good to see you. Thank you very much. All right. Let's just, just to get started, do you have your own office? My office in St. John'sbury. I've been in since the physical space since 1983. Whoa. Well, you're a veteran. And is that how long you've been in private practice since 83? No, I started here as a public defender in August of 1983. And then went into private practice staying put physically in May of 1991. Wow. Wow. And do you specialize in any specific areas of the law? We do primarily criminal defense and related civil practice. We do a fair amount of civil rights plaintiffs work and excessive force cases, prison, medical malpractice cases, that sort of thing. Wow. Do any of your cases go to court? Criminal cases, they pretty much start out in court. Sometimes we can resolve a civil case without filing, but not as often as I'd like. I'm sure. Pretty much all our cases are inactive litigation in courts across the state and sometimes even in other states. Wow. Do you have cases in many counties in Vermont? In the past instances where I had pending cases in every county in Vermont. Wow. Right now I don't have any pending in Addison, Rutland, or Grand Isle, but I'll be 11 other counties. Wow. That's impressive. Do you have delays in getting your cases resolved in some of these counties? Yes. And to some extent, historically there have been peaks and troughs, if you will, in terms of the backlogs, and sometimes in a particular court, sometimes statewide. But certainly since sometime prior to the COVID pandemic and through it, the delays have become unprecedented, severe. I mean, I have cases, criminal cases that are pending in both Orleans and Essex County that are over four and a half years old. Wow. Are any of those defendants incarcerated waiting trial? Early as a private practice lawyer, I don't wind up representing lots of folks who are detained pre-trial. I know at one point in Orleans County there were over 100 people who were in jail for over a year before their cases have been heard. I don't know what the current statistics are, but my suspicion is it has improved a whole lot. You know, we actually filed last, I guess, fall, emotions to dismiss for lack of speedy trial in 27 of my cases in Orleans County. 22 of those cases were dismissed for lack of speedy trial. And a call from your days of events, it's a pretty rare thing to get a court to dismiss a case for lack of speedy trial, even when the delay has been two or three years. But in this instance, these cases were all real progress had been made. All of them had been pending at least a year before the pandemic. And they were just inadequate resources to make the trials happen. Were some of these cases felonies? I mean, they were serious charges? Frank, about it out of the 22 that got dismissed, I think only three were. Felonies, quite a few of them were misdemeanors. And that makes sense, I guess. But yeah, so they weren't all just the offenses. There were some felonies that got dismissed. And are these delays a more of a problem in some counties than others? Yes, I think so. I mean, I think reasons we were able to get favorable decisions on our motions to dismiss in Orleans County is that we were able to demonstrate that there were known problems with the backlog before the pandemic, known problems with the physical facilities known long before the pandemic. And there's simply no effort to address the person in a meaningful way. Orleans was the last county to start jury trials after the pandemic. Initially, they were going to be held and forced venue changes. That option is what's still happening in Essex. I don't know what's happening in Grand Isle right now. Essex, the courthouse is essentially closed. I mean, the businesses being done entirely in St. John'sbury, the judiciary maintains that the facility out there is not adequate to conduct jury trials and there seems to be no anytime soon. So that places like Orleans, Essex, Grand Isle, habitually under resourced and from I think that's consistent in one way with some of the judiciary's sort of long term thoughts about the value of having courthouses in small counties. I think you were probably on the bench when the courts were unified. That is to say, there was no longer a distinction between the Superior Court and the District Court and the whole administration of the courts changed from individual county clerks, all that stuff, but part of that plan, that reunification plan as it was initially pursued by the judiciary was to close the courthouses in Grand Isle and Essex and to create regional courts. And while that was not part of the final plan, the legislature bristled at that, it's become almost a de facto reality. I'm bristling as you say that. As someone who lives in Grand Isle, the thought that a jury trial would be moved from Grand Isle to Chittenden County, a case from Isle of Mott shouldn't have to go to Burlington for a trial, in my opinion. I think it really is denying access to the courts, which is guaranteed by the Vermont State Constitution, by the by. Exactly. And, you know, smaller counties, they tend to be economically depressed compared to their neighbors. They have fewer opportunities for public transportation. I mean, if you're a defendant or a maidstone, and you have to get to St. John's Berry for your trial, I mean, not only is the time involved to get there, it's a real burden in people's lives to have to travel that far to get access to the courts. It's clearly unconstitutional. It's just not right. It's a fundamental part of a functioning democratic society to be able to participate in trials. And that's essentially been denied since of Essex County for several years at this point. It had been denied. And this is Orleans County for a better part of two years. And like I said, I talked to Doug DeSavito from time to time. My understanding is that the Grand Isle Courthouse may be open for some things, but it's not open for jury trials. And that's really the bedrock of the whole criminal justice system. If you don't have the prospect for a jury trial at the end of the case, the case is never going to end. Well, that was very well put. That's certainly consistent with what I see in my county, in Grand Isle County. I do not understand why people don't attach more value to these basic rights. It's like if it doesn't involve them, it's not important, I guess. I just don't get it. I really don't get it. So there's just a large disconnect these days. And I don't want to sound like the grumpy old man, but, you know... I'll be the grumpy old man. You go ahead. We all took a course called Civics. And it was a course about how our democracy was structured. How bills became laws, separation of powers, the important rights that you had to jury trials. And people were educated in that. Nowadays, I mean, lots of people only care about a jury trial. They're A, have to testify. Or B, they're charged. And it just seems to be something that's dropped out of our collective consciousness. But it truly is the bedrock of our governmental system. I mean, it is the brake pad of tyranny and liberty. And it really is critical. Wow. Yeah, well, I couldn't say... I can't tell you how much I agree with what you said. I think this is such an important issue, but it seems to be just... it's off the screen. I mean, it's on the screen today when you and I are talking, but it's just something that there's not much public consciousness about. CUNY trial litigation up in Orleans. There was a fair amount of press coverage. The judiciary itself litigation said that there'd be no trials in Orleans County until there was either a new building constructed or having trials out of county. Shortly after the motion started to get granted, they discovered that if they put an air circulator in the building, they could start jury trials again, and they did. But once the sort of public attention that dismissals for lack of speed trial waned, we haven't seen any uptick in trying to resume jury trials, say, in Essex County. As far as I know, nothing's happening. I wrote to the court administrator today and said that I know that several months ago, buildings and grounds, the state's sort of property management service and the judiciary had contractors out looking at the bill hall courthouse to see what would be needed to bring it up to code, so to speak, so we could do jury trials out there. I haven't had a word, heard a word, so I wrote the court administrator today and said, well, what's the timeline? What's the nature of the fix? When's it going to get started? And, you know, we'll see if we hear anything. Well, I want to be sure you understand that this interview is being taped, and that tape will be available. It's going to be released broadcast at seven or eight more times, but a copy will be sent to you, and you can forward it to the people you think should know about this stuff. No, really, I think it's quite important. I think that we are all kind of preoccupied between the invasion of the Ukraine and our own problems here at home that seem to take precedence. So I think the more things that you've discussed here today are broadcasted and are understood by the public, the better results we'll have. I've been encouraged because for a while this was all, you know, they're crying about money, we don't have money, but now they've got money, you know, there's money, and that money, yeah, exactly. And for them to start talking about how we were going to save money, I mean, I, gosh, oh, goodness sake, it's upsetting. It really is upsetting. When you have these cases, do you find that the delays hurt the defense or help the defense? In some ways it cuts both ways. I mean, when we were litigating the speedy trussions, I had my clients testify about the adverse impact on their lives that having a criminal charge pending, people don't go to school, they don't get jobs, they can't travel. I mean, there's just all sorts of things that are collateral to being charged. People move away, you know, the state's ability to marshal everyone together to try to prove their case beyond a reasonable doubt probably decays over time. So the minus is on both sides of the beat, so to speak. But you've dealt with cases where they've been pending for years, is that right? Years. Inbezzlement case, which is a lead case in the speedy trial litigation that was filed in early 2018. 2018? Wow, wow. You know, I just don't get it, I really don't get it. I don't know why this isn't something that's a big public issue and there's a big, a lot of concern about it. I speculate that the delays, people assume these delays involve defendants who are guilty, so they don't care. No, really, what could be behind this? I don't know. In serious cases, and I have a contract with the state where I provide representations of people who accuse their so-called serious felonies. I mean, the expectation for defense counsel these days, you know, with a looming ineffective assistance claim behind every major case really requires lawyers in my position to dot every I and cross every T because if you don't and you go to trial and lose, that necessarily takes time. So I don't think anybody really serious homicide case or aggravated sexual assault case takes time to prepare. And, you know, most of that delay I think would be attributable to the defense filing motions, conducting discovery, doing depositions, doing everything they need to do. That said, you know, lots of cases don't really have time and prosecutors available to try some of these, lots of these cases way, way quicker. Well, what do you think is the most important thing that could be done in the near future to eliminate the delays? Well, their scheduling is really discouraged under there. So if you had a local clerk, what cases were which and which ones were likely to take time and who could schedule them accordingly with a fair amount of freedom, I think that would just make. Secondly, we now have cases caused by the shutdown pandemic. And what needs to be done is to get retired judges all the amount of time and start being serious about trying to try these cases. You know, I'm sure you're aware, I mean, 40 cases on a list for pretrial conference. And you say, okay, whichever of these cases are resolved by the end of the day, you're coming back and we're going to draw a jury tomorrow. And we're going to keep drawing juries until we draw two for each trial day. Out of those 40, you'll wind up trying four and you'll get rid of 36. That kind of thing just isn't happening right now. Well, you know, I'm a retired judge and I would really like to help with this, but I can't by rule because I'm an elected member of the select board of my town and the Planning Commission of my town. And by rule, by rule of law, I can't sit on the bench if I hold a political office, which doesn't make a great deal of sense to me. It may make sense in Grand Valley County where I live, but I don't think it would make sense if I had, you know, driven up to Newport, which I've done in the past. You know, I've gotten around that. That's one thing about being a judge, you get to travel a lot. David, is there anything else you'd like to add? I've been really happy that you were able to do this today. Anything else you want to bring up? No, thank you very much. I appreciate the opportunity and it was nice to talk to you. You've been nicer to me today than you were when you were a judge. Well, you know, you're a hard man to control, you know. You got to do your best to keep order in the courtroom. Thank you very much, David. Take care. Be well. Bye-bye. I hope that you'll get ahold of this from your local station when it's released and send it around to your friends. I think this is very important stuff. Thank you. Bye-bye.