 I'm just going to go ahead and jump in. We're doing a strike all of age 25. This is a completely new language. It's just one section amending our attempt statute. So before I walk through it, I'll just start out by saying currently, under Vermont law, there are two elements required for an attempt. The first is an intent to commit a certain crime. And the second is an overact designed to carry out that intent. So the Supreme Court has held that the necessary act has to reach beyond the mere intent and far enough toward achieving the desired results as to an amount to the commencement of a crime. So bearing that in mind, we're going to all walk through this amended potential language. So subsection A provides that accept is provided in subsection D. That's the standard for attempt, the intent plus the overact. And subsection D is where we list all of these violent families that were formerly listed in subsection A. So all that struck through language that providing for those violent families and public are punished as the offense attempted to be committed as are punishable, that we're just moving that language down to another section of the bill. So that remains unchanged. I forgot to mention that the governor meeting on Friday and then about press release on Friday asked that the legislature pass two bills by Friday, this Friday, one deal with attempts and one deal with domestic terrorism, which surprised many at less. It may be a little unrealistic, but we certainly made the attempt at attempts. But domestic terrorism, I'm pleased to see John Campbell years since he was a sponsor of the domestic terrorism bill of 2002, along with then Senator Peter Shumlin. I don't know. That might need to be revised in the domestic terrorism bill to include firearms, but right now it's mainly a weapons of mass destruction. I can remember the debate that was something about bodies in reservoirs and Senator Campbell at the time, Senator Campbell was explaining how bodies ended up in white reservoirs in these times of mass sentment. Matt Lario remembers that debate. That was exactly what was being said. Well, maybe at some point you can revive your speech on bodies in reservoirs as a result of mass, weapons of mass. Anyway, that's what we're dealing with attempts. And we should deal with attempts, anyway, based upon the recent Supreme Court rule. That's what we do about it. All right, so I'll keep going. OK, so subsections B and C provide for penalties for attempted crimes. So we just add some subdivisions here. There's no substantive changes. So sub-D provides that penalty for a felony attempt is either imprisonment for not more than 10 years or as the offense that was attempted is punishable. Whichever of the two is less severe. And then sub-C, I'm on page two now. This is misdemeanors. So punishment for an attempted misdemeanor should not exceed half of the penalty for the offense had the defendant succeeded. So moving to subsection D, so this is really where the primary changes are. All of the subdivisions here under D are applicable only to these serious violent felonies that are listed in subdivision one starting on line nine. So that first subdivision one just provides it for this list of serious violent felonies. Punishment shall be at the same level as the offense the defendant attempted. And then subdivision two, this sets out a new rule, the substantial step rule. This is language that comes from the model penal code. And it provides that the person's guilty of an attempt under this subsection, so only for these crimes if the person had the purpose of the committing the offense and the person performed a substantial step toward the commission of the offense. And then it defines substantial step as conduct that's strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense. So that language is similar to the language in the model penal code. It's not exact. The model penal code language provides that conduct can't be held to constitute a substantial step unless it's strongly corroborative of the actor's criminal purpose. So there is some additional language here. It's not in the criminal code. So what this essential step analysis does is it provides that preparatory acts can serve as the basis for attempts. So as I mentioned earlier, when I started out, this is distinguishable from current law in Vermont, which provides that preparatory acts are not culpable acts. And the example I'll use is from the Hurley case, which is that possession of tools to commit a crime is insufficient for an attempt. Okay, so I'll move on to subsection three. This talks about affirmative defenses. Subdivision A provides that the legal impossible, there is no defense for impossibility. So the impossibility of defense is that the offense was legally or factually impossible of commission. So this provides that that is not a defense. And the majority of jurisdictions have rejected the impossibility of defense as a defense for attempt. Give me an example of impossibility. Sure, so if the impossibility grows out of extraneous facts that aren't in control of the defendant, that would not be a defense. So for example, if a defendant was commencing a criminal act and was interrupted in some way, that would be factors outside of the defendant's control. So the guard at the bank suddenly appeared and pressed the button and they notified the police and opposed the proximity and they came in and stopped the bank property. He wouldn't have been able to, can't use that as an excuse or not. Right, so that's a good example of being factually impossible. So if it were factually impossible for the defendant to commit the crime, then that would be an impossibility defense. So moving on to page three, subdivision B, this is the abandonment defense. Just thought that they just rolled through my head in front of a figure out another example that you started. If someone was confined to an iron lung, they made threats to commit mass mayhem somewhere and ordered online a weapon or something. I'm seeing that as somebody who is factually incapable of committing the offense. Is this the language saying that person has no defense? That that would not be a defense, yes, that's right. So they could be charged? There was no possibility they could ever carry it out? Yeah, so for an attempt, but yes, but don't forget that you have to prove not only that you had the intent to commit the crime, but that you also took us as a substantial step towards the commission of the crime. But under that scenario, if I ordered a weapon that could actually do that, let me back up a little bit. Is this not a chemical language? The impossibility defense? Yeah. Let me see. I believe that it's not. Are there jurisdictions that have it and you know if it's ever been challenged before? I would have to look into that. I know that the majority of jurisdictions have rejected it as a defense. Isn't this the state to identify if you're going to have a more or less... Yes. So why don't we wait for the state attorneys to defend their ground children? Okay, that's fine. Okay, subdivision B, this is the abandonment defense. So this provides that it is an affirmative defense. If the defendant proves that by a proponent of the evidence that the person abandoned the effort to commit the crime. And the circumstances are a complete and voluntary renunciation of criminal purpose. So the language below provides that in order to be voluntary and complete renunciation, it can't be motivated by circumstances that make it more likely that the defendant will be caught and it can't be because the defendant decided to postpone his or her conduct or transfer the criminal effort to another victim. So the abandonment defense essentially limits the substantial step rule so that a preparatory act isn't criminalized when a defendant abandons his or her attempt or intent to commit the crime. Could I ask one more clarification? I do apologize for this, but going back to age two, to the serious violence delinies, if the offense is attempted, the punishment is the same as if it was carried out. Yes. Any other questions for Brennan? I'm unable. I had a question, you said you need to go somewhere. No. Go ahead. No, I think I rather hear you or me. Well, why is this for you? Because we discussed this with you. Sure. You want everyone to join with me, too? He hasn't been near me for a while, so. Maybe you could go over. The reason for introducing the bill, this is a draft that you basically, and you veered from the model penal code in some areas, is that correct? Well, there was a small variation from the model penal code. And the model penal code, first of all, John Campbell for the executive director of the State's Attorney's of Sheriff's. James Pepper, Department of State's Attorney's of Sheriff's. And we, as far as veering from the actual model penal code, it was we left out what's referred to as subsection two of the model penal code, which is more, they provide sort of examples of what they consider to be substantial steps in reviewing other states, because mostly there are many states have gone to the model penal code for attempt and majority of them have done the same thing. The rationale would be more to let the laws of the state develop in the common law that we have. And they would then be examples of the substantial steps. The ones that are mentioned in here are just, again, they are just that of the examples where they would be considered by law a substantial step in which to prove the attempt. Do you want to add to that? Covering. Well, I was looking at the Supreme Court decision and Sawyer, page seven, discussion of the void talks about voluntary abandonment of an attempt, which is current law, case law, has preceded eminently, this was a case of sexual assault. Attempted sexual assault in 2005. The defendant may have repeated aggressive sexual advances towards the complainant, not ceasing until the defendant turned away from the complainant, and she was able to run out of room to contact police. So that they go on to use language that I don't quite understand completely, but sounds like the unavailability of an abandonment defense differentiates from our attempt from substantial steps and now it's just in the model appeal code, which permits abandonment as an affirmative defense, but this person, they found that this person, he was guilty of the attempt even though he didn't rape the woman. And am I reading that wrong? And so with what you're doing in either 3A or 3B changed that so that this person would no longer be guilty, what more of the, I think it's strong point. If the same circumstances arose. Let me just say this, I'm trying to get an answer to that question, I'm trying to understand if what we're doing would have in A said there's no defense because the woman ran away, is that what you're trying to get at or would be provide an affirmative defense to the person that he was no longer able to commit the crime because the woman was able to run away? I believe A is dealing with the impossibility defenses which there really comes in two forms. One is the legal impossibility, the other one is factual impossibility. The legal impossibility is one in which a person might be accused of committing a crime but in reality what he's being accused of is impossible in other words, they don't meet the elements of the actual crime. Whereas the second, the factual impossibility comes about when there's something else not an action or inaction by the defendant but something else external that makes it impossible for the actual crime to be carried out or to be actually considered. With similar circumstances evidently in this particular case, the person was guilty of sexual assault because the woman was able to run away from him. But his intent and he made several early moves towards consolation of the crime. And she somehow got away from him but I'm wondering if under either A or B we are now giving him an affirmative defense that. We would be giving the defendant and devoid an affirmative defense which you would have to prove by a preponderance of the evidence. However, the facts in this case, the mere fact that she ran into the bathroom doesn't mean that his criminal intent. She ran to get to the police. So that he would have to. There was a call to the police. Maybe she did go to the back. I don't know what the call was. I forget exactly the facts in the case too. I have read that but I think he would have to show by a preponderance of the evidence that he actually abandoned his criminal purpose which I don't think her being able to escape is sufficient to establish that he abandoned his criminal purpose. It sort of actually focuses on what actually the differences are between what we currently have and if we go to the model penal code. And that is, we're looking one, what we have now is looking at the actual act and the proximity of that act toward the consummation of the actual target offense. And whereas the model penal code looks to see whether there have been substantial steps whether the actor himself or herself had the intent and undertook the substantial steps to carry out the target offense. And so you're dealing more I think with the actor's intentional steps to get into towards actually committing it to as opposed to whether there was an actual overt act and then how close in time was that act to the actual target offense. But under this, with what Sawyer did be of the time? I would not, again, I would rather not discuss the Sawyer case because they're still active. Okay, it may be that you'd rather not discuss it but we wouldn't be here. That wasn't for the Supreme Court decision. And what is a substantial step under age 25 as amended in your proposal? What is a substantial, what would be a substantial, how would we define a substantial step? Right now, evidently, a substantial step is walking onto school grounds with a loaded firearm and having made serious threats. Evidently, and maybe on this reading, Joe, the Supreme Court decision, but it looks like you have to do something over it. You know, I was interested in the case. The one that wasn't guilty was the guy who had the, in both were in winter prison, I believe, and one had the blades, but he wasn't guilty because he hadn't started to saw the bars. The guy who jumped into the laundry basket was guilty because he made that attempt. Curious as to when we move from, in a case, obviously you can't, you don't want to talk about Sawyer, it's understandable, but on the other hand, that was where the court made the decision. Oh, yeah. What is a substantial step? Okay, we're gonna do it under this. Yeah, we'll take a couple examples in a second but I think you have to, again, what I understand is that with the overstep versus the over and act versus substantial steps, the over and act brings it, again, closer and proximity to the time of committing the target offense. Let me give you a real example. Wouldn't rise, probably wouldn't rise to one of these crimes. I've gone to a public meeting. I get back into my car with the reporter from seven days, factual. I get into my car and I say, I would love to meet that guy in a dark alley and whatever reason he prints that, have I made a substantial step towards an assault or a serious bodily injury? I wouldn't use that, I don't think you did. Well, we would need to, as a prosecutor, we really need to establish your clear criminal intent first, that's step one. And I don't think that that statement would establish a clear criminal intent. And then beyond that, we would have to show that you took a substantial step in order to carry out that criminal intent. What would be that? If you went and you had planned to meet the person in actually the location, and you would taste them to come into the alleyway, and you had, before you got to the alleyway, you had stopped and bought some brass buckles or you picked them up somewhere or bought a gun, anything like that, those are all things that we would have to show as prosecutors. We would have to show from an evidentiary standpoint that these things you did, and they moved you toward the actual target events and that would be, I'm assuming, by meeting him in the alley, you meant by assaulting him in the alley. I don't know what I meant. I just went blank to the dark alley. Well, if you were meeting them there for you, I'm not gonna tell you. If you're meeting them there socially, that's fine. You know, if he took it, I was threatening him. Okay, again, we would have to prove that there was, number one, that there was a threat that you had to be intent to go ahead and to assault this guy. And then we would have to show that you took substantial steps to achieve that. Let me, I think we got some other extant examples here. Maybe the mind was a bad example, but I think that's what people worry about is, so I write that, he wrote that down, I didn't write it down, Mark Davis wrote it down. But that's, again, you have to understand, we have to admit that that case, if you went in there and asked someone to prosecute based on that you, that this appeared in seven days saying that you want to meet the guy in the alley, there's nothing there. I would, I don't see any prosecutor taking that case, but. So I have two questions. Maybe you can come with me. I don't think we might. I don't know, I'll ask you when I finish here. So I, what is different right now with the laws that we have in terms of him saying, I want to meet this guy in the dark alley, him going, setting up a time with the guy to meet with him, stopping him picking up his brass knuckles. Why do we need this? Why can't he be prosecuted now if he takes those steps? It's a good question. I think what that actually will define substantial step is because, and I mean over. But why do we need this? Hold on a second, I think. So in this case, the one you just brought, the over act would have to be something where he was or that the person with the brass knuckles, if Senator Sears was there, that he was actually, within close proximity to the person where he could actually carry out the attack. So I would say that based on that case and then the other case that isn't mentioned here with the beer bottle, even a person under our statute, if I had a bottle raising the bottle over my head and hit him, I'm not in close enough proximity where I'm actually gonna do it. I'd have to be, we'd feel that the over act is you would almost have to be coming down with that bottle very close to where it would hit his head. And you would have to have those brass knuckles aiming towards his face and with that fact that I could carry it out. So that is the problem here, is the fact that there's really little chance to really deter and prevent an action that is a person who has a criminal intent to carry out, whether it be a bank robbery, sexual assault. So we're saying that this is a law that's based on, it's antiquated, it was over 100 years ago that that case occurred. And right now, I think we find that in order to protect the public, that we should have the ability if we show that there's substantial steps taken toward committing an offense and that the person has a criminal intent that we are able to prosecute that. What should we do with one of your examples? Oh, okay, I have another question when you're done. I guess. Well, I just, this isn't a question of substantial step, but on page three, it isn't the affirmative defense if they abandoned it because it increases the probability of detection. I mean, how are, of course I mean it was abandoned, my idea. If I think I'm gonna get caught, that happens to little kids who take money out of their mom's purse. If they think mom is standing there, they're not gonna do it. I mean, how do you? This law, but the model field code actually recognizes the fact that people might have second thoughts on doing something. And if that occurs, then they should be able to use that as a defense. Right, but not if they did it because they were afraid of getting caught. That's what it says here. Well, there's a, it must be complete and voluntary. So if you have the police standing over you and you're like, you know what, I might not do the right thing. I'll give you an example. There's a second sake, the circuit case, which basically evolved the bank robbery and where a group of people went to rob a bank and they had the masks, they had the guns, they had everything and they went to, they already scoped out the bank. They went to the bank, but they felt that something was hinky that they didn't wanna go through it. They stopped until the next day. So the next day they went back and as they were getting ready to get out of the car, the FBI went and arrested them. Now, they raised on appeal. Their defense was that they were, it was an attempt that didn't really have the plan to go forward through it. They didn't complete the action of robbing the bank. Therefore, they should not be charged with that. And the second circuit ruled the fact that they had taken those substantial steps. They used the model code, penal code, interpretation as the substantial steps to find that they had been arrested. So could they have spent the day before when they abandoned their idea and went away? Could the FBI have gone and arrested them then because the way this is written is they didn't do it because they were in fear of getting caught because something was wrong. So that would have meant that the FBI could have gone to wherever they were and arrested them because they abandoned the idea, but it wasn't a true abandonment of the idea. It would have to be a complete, you know, relaxation of, you won't even have to prove it. Okay, all right, okay, thank you. That is a much closer case. Yeah, okay. Okay, wouldn't be what you'd have to prove it. Right, yeah, that's perfect. Other questions for the, I appreciate what you guys are trying to do. One thing I'm a little nervous about here is trying to legislate again in the midst of fear and paranoia and understandable concerns. But I don't want to get this wrong. It seems to me in the description that you're trying to reach words over act versus substantial step. We'll go back to my example of the guy in line one. If he threatens to kill someone and purchases a gun, I'm assuming for the purpose of this argument that that is an overt act towards a given objective. But if he says, I'm going to kill James Pepper tomorrow at noon time and I've got a gun coming today, today, is that what you're calling now a substantial step towards carrying out the offense? It seems to me a substantial step implies there are steps that are taken in the sequence of events as opposed to an overt act which might be isolated all by itself. An overt act must be in close temporal proximity. Today, but I think that's the Supreme Court's role in it. That was not the case in the most recent case we're talking about. That's all good law still, even at this, yeah. We're not doing writing or thinking. I'm sorry? We're not doing writing or thinking. Is that, is that, that's, this person's thinking I would love to do this. Joe's example in the iron lung. I mean, obviously he's thinking he would love to do it but he's probably incapable of doing it. So just thinking. That's my next question. I think no, I think you again that you might have the intent that might show that you have the criminal intent to actually try to commit this target offense. However, you still have to, the state would still have to prove that you took substantial steps to complete that. And good. I would say if you're in the iron lung and you have a criminal intent that we can prove that you wanna kill someone and you hire a hit man that would be a substantial step. But if you're in the iron lung and you have, you know, you've ordered a gun I don't think ordering a gun by itself's thought. Well, see, good, but you can't get through it back. At the same time you're trying to, the same time you're trying to get to where you wanna be with substantial step analysis, you are removing the factual inability to complete that change and we're troubled by that. I don't know how I can figure this all out if you want to head in this instance. I think the intent here is to adopt a statutory scheme that is used in, I think around 20, 25 case states that are doing this to show and recognize that we as a society that there, that the lawsuit currently that we have and most of them come under the common law and that are based on different proximity tests that have been put up through the different areas that that is not sufficient to achieve the goal of protecting our communities and that there is a better opportunity to provide the safety, to provide deterrence, to provide prevention to this under the body of penal code if a police officer cannot arrest somebody until I have my finger on the trigger and I'm getting ready to shoot you, it would be better off if the, and we are saying as a policy that we should be saying that if the person has a criminal attempt to shoot you, does everything by the gun, goes to your house, that therefore they put the trigger on the trigger. Will they be clear? Yeah. They're disputing the policy of trying to correct something that may be flawed. What I'm concerned about is taking a step beyond that that is unintended. So at the same time we're trying to patch up the overt act and give it a substantial step analysis, you are removing a factual impossibility from completing that process and that's what I don't understand. I'm trying to wrap my head, why is it we are denying someone an affirmative defense if they can factually demonstrate that it's literally impossible to carry out that substantial change? Well, I think, you know, these are, every one of these substantial step analyses is gonna be very fact dependent, very fact specific and I think that a little bit of common sense will come into play when a judge is looking at these things. But at the same time James, you're saying we're gonna remove a factual analysis. That's what's bothering me. And I understand where you want to go. I'm concerned that the step being taken is going to literally mean somebody who can't actually complete the process is wrote into that same analysis. I think what the factual part is, the fact that if you have a defendant that has the absolute criminal intent to carry out an offense and does take substantial steps towards doing it, not knowing that he cannot, that or she cannot complete the crime, I think that's where this has, the factual impossibility has been developed and over the years for the new trial and the decision. An attempt under Vermont law requires an act of mid crime coupled with an act that's a foot and interrupts the result of a completion of the crime. Can you tell me the difference between that and in line 16, a substantial step that is currently grabbing a firmness of the act's purpose to complete the commission of the crime? So that you're using the same terms there, my correct. Substantial stack is conduct that so. I guess I'm arguing that. Page two. Page two of your draft 1.1. On line 16, 17 and 18 defines what a substantial step is. As a substantial step, I'm not a lawyer but I'm reading this as conduct and strongly corroborative of the firmness of the act as purpose to complete the commission of the offense. Right. Supreme Court says, three members of the Supreme Court said an attempt under Vermont law requires an intent to commit a crime coupled with an act that but for an interruption of the result and the completion of the crime. Explain to me the difference between that and that. So, the. How does this get us any further than what is current law as defined by the court? That's what I don't understand. And I'm sorry, I'm not a lawyer, so maybe I'm misreading something here. So that this may not get you where you want to be. Understand all the other language and affirmative defenses and all that. But if you're defining a substantial fact as conduct that is grounding broadness and firmness of the act of purpose. And then you'll read 12 on page four. Okay. First of all, so just so everyone. So forcing you to talk about the Supreme Court decision, so I'm not talking about. No, I feel up to one of that. No, I understand that. But first of all, let me explain. So those who don't know this, this is the language of model pinnacle. This is not a substantial step. It's not like John Campbell and James Pepper all of a sudden came up with. This is what our definition of what we think that substantial step is. So this has been something that is law in 25 other jurisdictions or approximately 25 other jurisdictions. They take bits and pieces of the model pinnacle. So this is what has already been before courts and has been argued and this has been accepted. And I think where you're talking again, you're here you're talking about the intent of the actor and what the actor is doing. Your actions that the Supreme Court is discussing here, they basically say what we have currently and that it has to be an action that over an action has to occur, but that if there's but for something stopping or interrupting this would be resulted in the conclusion of the crime. So yes, here you could say that the possibility of completing the crime is discussed in this opinion. In the early case, which we can talk about, the language ends with the phrase, we result in the completion of a crime. It seems to me your language is shifting from the possibility that the crime is completed over to what is the purpose of the perpetrator. And when you subtract the ability of the potential perpetrator to say, actually I couldn't complete the crime, to me that's problematic. And that's I guess the difference that I see between what is currently law and what you guys are trying to resolve. I don't want us to go a step too far. I wanna be able to help where you're going, but I'm gonna submit that where you're going has shifted the conversation from can this person complete the crime to what is their purpose. And when you get to the words purpose and then subtract from them the ability to raise an affirmative defense, I find that difficult. And I don't know if that's really where you wanna go or if that's just the... Why don't you guys think about some of the questions? Maybe I'm missing some. I'm more than happy to come back and talk about the impossibility because that's where it seems like we're hung up on just a second. No, I'm not hung up on the impossibility because I don't think they're gonna charge some guy in an iron wall, okay? But I am hung up on where we're going, because it may not be further from where you wanna get to, except we've now provided an affirmative defense. Yeah, I think... I'm not sure that, again, not being able to talk about the soya makes it very difficult, but reading that case and reading all the information, I'm concerned that he never got to a standstill. If, let's take a look at Parkham for a second and adjust that a bit, the scenario. So we know, obviously, what happened, but the fact that this guy had planned this, he had the weapons, he had the all-around, all the magazines, whatever, he's ready to rock and roll, and if the police caught him on his way over to, let's driving over to the school, I do not think that that would survive with the overact, that requirement of our current statute. However, under the mobile penal code, I believe that we could have been charged at that point because there were a significant number of substantial steps that will corroborate that that number one, that to show what his intent was to go and to kill as many people as possible in those building and schools. And second, that he, the substantial steps towards it was getting all the equipment, planning, how he was going to do it, and actually going, getting in his car, driving towards the school. I think he could have been arrested for if there was the model penal code, let's say that happened here, that we would be able to arrest him at that point. I don't think, based on what the recent interpretations of attempt and with overaction, I think that we would have faced the exact same problem that the Supreme Court has been discussing in this case. So we're trying to be preventative and to try to see that this doesn't happen down here, or down here. I'm just saying, I'm reading the wording and then reading the wording that the Supreme Court, the three months that the Supreme Court wrote, seeing similar language and that I'm still trying to understand a substantial step. Buying a firearm is not a substantial step, is it? Well, I think it is a substantial step. How does buying a firearm be a substantial step first you fail to get in the firearm? First, if you fail to get in the firearm, that failed to buy, that failed to get in the firearm without a minute, substantial step. I think you have to look at all of the other factors that might be here. Number one, you have to show the fact that he actually is planning on doing that. He's got that criminal intent to kill these students. And then you look to see exactly what did he do to make that happen? He knows in his mind that he wants to kill all these kids. What did he do after that, that was leading him to the target offense of actual firearm law? I think we all want to know that if somebody who's planning to shoot up the school, that we're able to stop that person and charge that person and have preventive action, if we're able to animalize that person. And I believe that. And not allow, and not wait for that person to have a hand, a finger on the trigger before they, you know, and have to walk into the school with a finger on the trigger in order to stop them. I think that's what we all want. So if you want that, that's what you have to do. Well, I think that's a good question. Obviously, if he's looking back at this defender general, so I'm going to come up and explain why. No, I'm looking at the attorney general. Oh, okay, maybe you can explain. Well, not really the attorney general, but he's representing the different general. And so, it wasn't necessarily looking at that, although he had a number of times when he spoke at night and day, and we'll see that. He might have been thinking about something else, though. I think he had it bugged this year. Anyway, there is a, on kind of the spectrum. We're all trying to get to the same place as what I'm trying to say, just as we've done. On the spectrum of substantial steps, I think one example out of the Missouri Supreme Court determined that it a case where a kid was writing journals, obsessive Columbine writing journals about shooting up a school. His parents committed him to a mental hospital when he turned 18 and got out. He stopped taking his medication. He bought two guns, did extensive target practice. His mom found the receipts for the guns in his pocket and called the police. During the course of the interview with the police, he mentioned something about shooting up the school. Missouri has a model penal code. The Supreme Court determined that as a matter of law, the buying of the gun and the extensive target practice were not insufficient as a matter of law to determine a substantial step. And then that then turned to a jury question. You said were it insufficient or not insufficient to establish a substantial step? And then again, that's as a matter of law, then it turned to the jury to determine whether or not he actually had the criminal intent and whether that was sufficient. So I don't understand, I guess, I'm concerned about this whole thing. And I don't understand why this, the example you gave of the Parkland guy. If that had happened here, why we couldn't use 221? Because he showed an imminent risk. We couldn't use 221. And I guess one of my concerns is then charging him with the exact same punishment as if he had actually carried it out. And one of the things that this may be totally irrelevant, but when the doctor, the pediatrician was here and talking about 221, and she was talking about suicide people. And once somebody attempts suicide in there, it's, they don't do it because they're, the guns are taken away from them for a while or whatever. They almost never try it again, is her experience. And so why, I guess I'm really concerned about this person has this intent to do it and we're gonna put the same, the same. Are you saying that you think that someone like Cruz if we had stopped him just this one time that he wouldn't try it again? I don't know. I have no idea if he might have tried again. He may have been having some kind of a psychotic break. And I don't know. That's why you didn't develop what the criminal intent was. And you look back at this, at least what they know now. I know. Your 221 could be used and put that again is limited. I mean, if they're. It's limited. Right, but it's not, but we're not gonna charge him with murder. But if I have somebody who is going into, who's going to get his guns, they are 15s that have multiple magazines and we know that he has the intent or she has the intent to go and shoot at the school she's written or he's written diary saying he's gonna do it. He gets in the school or in his car, he drives to school. And he's ready to go. Yes, I believe that that person is probably intent of tearing that out. And I believe that that person should be subject to being arrested for attempted murder. I need to set the guy up this here again. Okay, I'll be quiet. No, don't be quiet. No, they won't. We all agree that it's better to prevent something than to have it happen. But when it's prevented, how do we hold somebody accountable who may continue to present a danger to other people? May not do the exact same thing, may present a danger. Clearly Vermont law reading this decision. In terms of attempts is one place where we could look to make significant changes. I think there's anybody here who doesn't want somebody accountable for their behavior. The question is, does our current law allow somebody to get away with that behavior and not be held accountable and ask what I want to get to? And I think we've skirted around it enough as a committee and maybe it's, Joe, I know you have another question John and Pepper and we can go ahead with that but I just want to bring us back to, the goal here is to create a statute that will help to hold somebody accountable who exhibits the behavior that was exhibited. We don't know how many shootings in this nation have been mass shootings have been averted because of something happening. So I don't know, we never know what's been averted, we only know what's happened. So Senator, what we did when we decided with the model panel code and as all of us do here when you look to other states that have been successful maybe in discussing and dealing with the same topic, the case that Pepper just mentioned over in Missouri, if you again hear all of the facts of that case, they will sound eerily familiar to you. And so they had this language, they were able to prosecute that person for those facts that we just gave you that you can put those, compare those to any fact situation you want. But I just think that this is the method to go. We've been asked to try to help in this situation. I've got personal reasons for trying to help here and I'd like to have something happen before when we face a situation that we can't stop. I think we're all in the same page, Joe. Joe, so using the Parkland situation example that you gave before, all the substantial steps have been taken. Kid is driving to the school and he's stopped. Police investigate the kid, search in the car, there's no weapons. Under your field, what would you charge him? Well, you're saying he's got no weapons. So I think you take out a major aspect of this. I mean, it's not because the bill that you're presenting us has removed any kind of factual ability to say it couldn't have been carried out. No, I don't believe that that's what factual, the factual impossibility we're talking about. Oh, you're talking about others. Particularly on that issue. The reason I handed you that is I'm curious if you think that that covers, and it's the straight model penal code, the substantial step which is in part C, one C I believe. Which maybe you're not understanding where 3A comes from and what it designs to do with health, I'm still on D2. Where are you? Where are you? I'm familiar with the language about culminating in the crime. If you want, I mean, there's examples there, as I said in section two of that. There's nothing, I mean, that can be put in. It's just the fact that this again is model penal code is giving you the suggestions. They're not exhaustive by any means. But if you'll notice in there the examples, I think those examples cover what we're talking about here. And again, it could be used as reference to the interpretation. The fact that the gun jammed was not a reason to say that the addict, that's the person, not a criminal, I don't think that happened. Right, there you go, there's an impossibility there. If the gun jams, you still could be charged with that. And that's not a defense. Legal impossibility, that's a defense. Or I should say that today. Judge Grayson. We'll get to them when we get to them. This is the priority for you. Yeah, that's a long time to say. So I thought we had to do that. That's 237, that's the house's name, whether we want a committee of comments. Yeah, cancel that, we can vote on that for 718. You don't keep that, cancel this. I guess, I don't know what I'm doing anymore. I'm gonna feel like I've been torn as hell here, by the way. So we can try to answer questions about this. Getting a little fired up, I'm sure everybody else is. Judge? Senator, for the record, Brian Grayson, Chief Superior, Judge, I think as I listen to the discussion that's taking place this morning, I'm in the least position to be who assists the committee in trying to achieve what you've stated as your goal because of obviously my role. And this is clearly a policy decision. And I'm not in a position to say how this bill if enacted with this language would, the impact it would have on the SOTR decision. So I would be glad to answer any questions the committee has, but this is strictly policy. And I understand what the committee and some of the other witnesses are attempting to do here, but it's certainly not our role to advocate one way or another. I don't think that will help the committee, but I trust they understand the position that the court finds itself in, particularly with a pending case. Well, yeah, it makes it difficult with a pending case for them. I mean, I think you've answered it. My frustration is I'm not sure this language gets any further down the road than... I think you have asked the appropriate question and that is if this bill was passed in its present form, would the activities, actions, behaviors of, in the SOTR case, amount to a substantial, and I'm just a step and I'm not in a position to offer anything. I don't think you should offer anything. I mean, I'm not going to. But I think... I appreciate your being here and thank you. There may be a point in the process that my testimony may be of no assistance to the committee and I will await testimony from other witnesses. Thank you for the opportunity. Will we wait? And tomorrow morning we'll get to that. Do I really want to take the defender general first? I'm going to be a while. I think he's going to be a while. Maybe share with you. I mean, I want everybody to come in for a minute. Well, well, we already provided your testimony. It's not very long. So I thought we could get that done and then we have to talk about this something else. I'll speak to the bill. For the record, Chloe White, ACLU Vermont. We have serious concerns regarding this proposed language. We recognize the good intention behind the effort, but we think it raises significant constitutional problems and would be a setback in the progress Vermont has made towards improving its criminal justice system. We think there may be better ways to address the legitimate concerns that motivated this language. First, we share, I think you'll hear from the defender general tomorrow, concerns regarding this proposal, especially with regard to lowering the standard so dramatically that it could have wider application than intended. Additionally, we're very concerned that it would punish some attempted crimes as harshly as committed acts and this change would be applied inconsistently with lower attempt standard for some crimes, but not others. And Vermont would seem to be an outlier in these regards. In addition to these due process concerns, there are major first amendment problems with the proposed definition. Training speech, such as a journal entry as a substantial step because it corroborates the actor's intent would contraven well established free speech principles. The US Supreme Court is taking care to set a high bar for incitement or true threats, but under this proposed definition, it seems the government could charge a defendant with attempt for anything they wrote that was strong and corroborative of the actor's intent. Our constitution doesn't allow someone to be convicted of attempted murder for something written in a private diary, a blog post, a violent song, or in the course of other activity protected by the first amendment. By expanding the definition of attempt to cover all firm expressions of criminal intent, the law threatens to punish a large amount of constitutionally protected expression and expressive conduct, as well make criminals out of people who may express an intent to do something unlawful, but are either not really serious or change their minds before anything is really underway. I would also note that, as we know, especially teenagers, juveniles, there may be a tendency to be more dramatic than an actual intent. And I think that this could also cover these dramatic intentions that actually are not intentional at all. So if the committee is committed to changing the attempt language, notwithstanding all of these issues, we think there should at least be a higher bar set. For example, at minimum we would propose the following additional language. So right now, a substantial step is conduct, which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense, and which is more than mere preparation. So this could help diminish some of these concerns, but would not dismiss them. Is there a question for Chloe? I think you're settled on something. What do you think is substantial? Under, if you raise that as a substantial step, do you think that as a substantial step would be saying, I'd like to meet you in a dark alley, would that be a substantial step? Or under draft 1.1? No, I think that alone would not be a substantial step. What is a substantial step? That is, corroborative of the firmness of the actor's purpose, and you would add language that said, which is more than mere preparation, and I'm curious as to how that more clearly lessens the possibility that writing something in a journal which you also raise would be seen as a step. I've read a lot of fiction in my life, and one I suppose could argue that somebody writing fiction has planned something. I think we'd have to parse the difference between someone writes a violent song about getting rid of their ex-husband with their best friend and serving him poison and dumping him in a lake. There is, and they buy a large amount of legal substance that in large amounts is poisonous. But if they do all that and then they write this song, I worry that that is seen as a substantial step without, what is the purpose of buying that large amount of substance? Maybe it's because maybe it's cleaner and they want to clean their house very well, and they went to Costco. I don't mean to make light, but there's also, and there's an intent to do something lawful in the heat of the moment or without a cooling off, and then there's, how do we distinguish that? Is that enough? I would worry that that would be enough under the proposed language, but where is the, how does one know then that that's going to happen? How do we charge that as an attempt and then charge that or carry the same sentence as an actual murder? Can I ask you a question about that? Can I read something there? This is from Professor William T. Pizzi, and I sent this up. And if you read his conclusion, he talked about, I've come away from this exercise convinced that the Marlborough Penal Code did a very good job of clarifying the point at which conducts devices for attempted attempt by ability to reject the common law approaches that often require a physical proximity or a temporal proximity to the crime in favor of the requirement that the person has taken a substantial step, strongly corroborative of the actor's criminal purpose, and I don't think that's what we've got here, by the way. Strongly corroborative of the person's purpose. Especially when the crime is serious, we need to give law enforcement the authority to intervene and stop the crime before it directly threatens an injury. The Marlborough Penal Code does avoids the problem in Rizzo, the court complimenting the police for their wonderful work in arresting a gunman looking to rob a payroll, but leaving the government free of any criminal liability so that you may rob the payroll as soon as they obtain more accurate information on the place and time of the payroll delivery. That seems to be what the Marlborough Penal Code is designed to do is not allow them to say, well, gee, the fact that you got the wrong day for the delivery of the payroll failed to rob it at the right time is not an excuse, but on the second, but this comment about strongly corroborative of the actor's criminal purpose, is that, would that help from your perspective? I think that's, I mean, isn't that a lot of- That's a lot of what you're saying here? Or no, I was saying more, isn't that pretty akin to what the language is proposed, is conduct which is strongly corroborative of the firmness of the actor's purpose? Can I give her an example? Yeah. So on Saturday, in Browber, there was a, he looked like a young man in his late teens or early 20s. It's hard to tell, because he had on a long black kind of robe kind of thing with a hood on it with a face piece that came down to here. So you couldn't see him at all. Looked a little scary walking around town and people were kind of avoiding him. If he had gone into Sam's and bought a knife, and then they stopped him and they found that he had journals with pictures of him stabbing people, would he have fallen under here because he had journals with pictures and he was looking really scary and he went in and is that a substantial step? I mean, could he have been- I worry that that is, that could be the outcome of this. I'm worried that the outcome is- I mean, you might not have had that intended. I mean, right, we don't know, but anyway, okay. It's going to be hard to determine. It's going to be hard to determine. I know. I really worry about it. Any other questions from John? Any comments on where we're headed? We're a mess. Yes. From our morning, we were canceled with everything that we had scheduled to pick up with actually, I think, all of them were scheduled for a Chloe White brand grant. We'll cancel tomorrow morning at 8.30. We'll pick up with this with the insured natural area with anybody else who wants to go and then try to mark up the bill. So cool.