 Hello, welcome to the judge bench show. My name is Ben Joseph. I'm a retired superior court judge here in Vermont. And this is a program in which I interview guests about the legal issues and what's going on in the judicial system in our state. Today, my guest is Howard and bentoism. I was now also a retired superior court judge, having retired earlier this month. And I should say that I've known Howard for years, and he's a great friend and he's been a great judge. But I and I'm thanking him for coming on here today to talk about how things have gone and how things are going. So Howard, how, how, how long were you on the bench? How long were you a judge? I was on the bench for about 24 years. I was appointed by Howard Dean in 1997. Wow. Yeah. I was appointed by Howard Dean in 1998, you know, yeah, came right after me right after you. Yeah, well, he was. I was so I'm just after my 10th anniversary, I sent him a long thank you note, because I thought it was a great job. So where did you work before you were appointed? Well, before I was on the bench, I was in private practice of law up in St. Albans for about three years and before that I had been Franklin County State's attorney as you know for about 10 years. Yeah, and my wife was one of your workers. One of my best hires ever. Yeah, that's no exaggeration. She was terrific. She was terrific and she did nothing, but I remember there was a three year period where she was doing sex assault and domestic violence. Yeah, tough, tough, tough. Those are very tough dockets, you know, she handled them brilliantly and with great empathy, which is, you know, those are two qualities you need for those dockets. Yeah. Well, did you like being a judge? I love being a judge. I think it's the best job but without due respect to Chief Justice River and his associates, I think trial judge is the best job in the state of Vermont. Well, I'm sure it's the best job I ever had. I'm really to this day I miss it. You know, I'm well, you know, 24 years where you paid your dues. Thank you. Thank you. Well, is there anything you didn't like about being a judge? Well, you know, Ben, after a while, as you know, the traveling gets to you because all of Vermont's trial judges rotate almost on an annual basis. Most of us travel at least an hour. Sometimes, as you know, it's an hour and a half or more one way to get to your duty station, your court. Frankly, in the last few years, I began to tire of two hours a day in the car. I mean, VPR is entertaining, but 10 hours a day or 10 hours a week might be a little over. I remember one of my first assignments was I was living in North Hero, and I was assigned to Rutland. Some of that was, I was staying in a motel during most of the week and it was hard. That was tough. It was about an hour and a quarter for me to go from my house to Newport when I lived in Fairfax. Well, that adds up, especially when you have kids, you have a family, you've got other responsibilities. And you're going up and down the mountains there, right? Going up and down the mountains. Judge Rangel's doing that. I believe now he goes over the mountain to Newport from Georgia. Wow. Well, what effect has the pandemic had on the judge job for the last year? Well, you know, just as in every block of life, really, the pandemic has radically changed the nature of the job. One of the things I love about the job or loved about the job is the people contact, seeing the people in the courtroom, having litigants, defendants, lawyers, staff in the courtroom. And of course, as of almost 13 months ago now, we stopped all of that, almost like on our dime. And so, from going to from a very busy docket, a very people-oriented job, we all suddenly transitioned eventually in the summer to this talking head world that we're in now, the Zoom teams, WebEx sort of thing. And it loses a lot, I'm afraid, when you're having to talk to people through a screen like this, especially when people are having the worst day of their lives. You know, having a divorce, having a case in juvenile court involving one of their children, being involved in a relief from abuse matter, being a witness or a defendant in a criminal matter. And one of the things I think Vermont judges do well is the people aspect of managing their jobs. Well, were you active in all three divisions of the Superior Court? I was, yeah, over the 24 years I've sat in every division of the court. I sat from Essex County over to Grand Isle and all of the counties in between. I've been known to bury a few times, and so I've been all over the northern half of the state sitting in all of the divisions, which is one of the things I think you may remember fondly about the job, which is the variety that you get. Oh, yeah, absolutely. It really is that that was one of the best job I've ever had, the variety of the work, and the responsibility, frankly, that you had to. And a lot of states have judges who are elected, and they're elected into one docket. And so they spend their whole career in one docket in one division, and their, their career is defined by how many times they can be reelected. In Vermont, every trial judges with the exception of our two environmental judges, every judge is presumed to be able to sit with equal fairness and effectiveness in all the divisions, whether it's civil, criminal family, juvenile appeals from lower courts like the probate courts. And, you know, over the years, we've all developed our favorite dockets right but, nevertheless, in any given year any one of Vermont superior judges could be assigned to a different docket in a different county, and that happens it's part of our rotation. Well, I gather for the last year you haven't done any jury trials. No, we haven't and that's another thing that I miss very much. We stopped during jury trials, you know, in the month preceding the pandemic really taking root in Vermont and across the country. And the Supreme Court and a committee or two of the Supreme Court have been really trying hard to figure out how we do jury trials in a pandemic environment with social distancing mask requirements, plexiglass partitions in the court rooms. You saw, if you saw the recent chauvin trial out in the Midwest, the jurors were all seated six feet apart. There was plexiglass around the witnesses and around the judge and so forth. But in Vermont, we don't have very many courtrooms that are big enough to. You need an auditorium. Well, do you miss doing the jury trials? I do. Yeah, that's one of the things I always enjoyed. That's really the hallmark of our criminal justice system is allowing in Vermont, I think a jury of your peers to decide whether the state has proven its case. And the judge, of course, is the empire to make sure that everything's done fairly to everyone, the defendant victims, the public. The lawyers are following the rules and yeah, I do miss the jury work and I'm hoping that as a senior judge, I'll get to do some of that as we try to come to grips with a very, very large backlog. Well, yeah. Yeah, that's, and that's going to really be a challenge. And I think, well, I just don't know how that's going to turn out. I just hope that I hope the legislature provides the resources that will be necessary to do that. Well, I know that there are discussions underway between the court administrator and the Supreme Court with the legislature about this because the legislature is, as we all are concerned about the backlogs, particularly of criminal cases and specifically criminal cases in which a defendant may be held awaiting trial. And in Franklin County on when I left at the end of March and retired actually April 2, about 1200 cases criminal cases awaiting trial, and only a fraction of those of course were folks who are being held probably one third of 1% something like that, but not very many but still very important cases to the victims and to the defendant certainly, and to the people of the state to get those done enough, as soon as we can. Well I think those delays inevitably hurt the state. I think delays and getting a case of trial is really hurtful. Yeah, witnesses move their recollections fade over time. I think that's a true statement. On the other hand, if you're waiting in jail for your trial, you probably want it to go forward as soon as. I know it the Supreme Court has approved a number of courts around the state to begin to resume jury trials, still with social distancing and masking and those kinds of precautions but it's going to take. My guess is we'll be looking at the first jury trials in early May. Wow. Wow, and you think those will be criminal cases. Yeah, well I think the Supreme Court would like to start with some civil cases to see how it's going to go. But as you know from your years of doing this work. If you put 10 civil cases on a jury list. It certainly stimulates discussions about resolving the cases. If you put 10 criminal cases on the list, you may well draw four or five of those. And for my money, and I think the priority ought to be on the criminal cases in which a defendant's being held pending. That's when someone's judges made a decision that the person shouldn't be released on bail. They tend to be across the board the most serious cases in which there's either a life sentence penalty, or there's some serious allegation of serious interpersonal violence. Those are the cases that in which overwhelmingly people are awaiting trial. Wow. Yeah. Are there resources that the judiciary would need to handle these cases or something more that should be available to the judges. Sure. I mean, frankly, Vermont has never had what I would call an imperial judiciary that is to say we've never had a surplus of funds. We have done everything on a bit of a shoestring over the last 24 years in my opinion and we. So we, we've never had an abundance of either staff support or judges. And frankly, right now, for example, we have what three or four superior court vacancies are about to be three or four. Now, when that happens in a system with only 34 judges, now suddenly you're down 10 or more percent of your workforce. That really makes it more difficult for the remaining judges to keep up with the work add on to that of course backlogs and all of the counties which are probably in the hundreds. In terms of cases awaiting trial or being moved forward. You've got a real problem so the solution to this problem isn't isn't a mystery you need to have the resources on the defense side the prosecutorial side and the traditional side to get the cases moving forward to trial. I know that there was a discussion recently. I don't know how serious it was about night court. I do remember Ben over the early in your tenure, another judge and suggested let's try a night court. It's like anything else. If you don't have the resources to do it. Then it's, it's the waste of time it's not going to save anything and right now we can't ask our public defenders are prosecutors are court staff are judges to to come in after their 10 or 11 hour days and work another six or eight hours to try to catch up. That's that's not a reasonable approach to the problem. Well, I, I can remember my days down in Chittenden where I come in on a weekend and spend hours getting getting ready for Monday. Sometimes Monday there'd be like 100 arrangements. You know, you spend you have to spend a heck of a lot of time going through the files so you know what you're going to be faced with when you when the when the court opens, it's difficult. Yeah, I mean I remember bringing home boxes of work on a Friday to do on a Sunday to get ready for the following Monday. One of our colleagues work that way. Now we have this new Odyssey case management system. And this at least allows you to do your weekend work online, if you will, because you can now access your files through the computer when it's working with, and it seems to be working pretty well. Nevertheless, I don't think it's a good strategy for our colleagues to be working on top of their 50 hours a week that they're working now during Monday through Friday. It's ultimately corrosive for you to never have a stress release and never have time off where you're not working. So, I'm afraid the answer frankly if the legislature asked me my opinion it would be that you need to add more staff and you need to add more judges. You need to look at the public defense system and you need to look at the prosecutorial system the state's attorneys and when you if you do that honestly and and if you really want to move cases in a speedy way that's fair to everyone the victim the public and the defendant. You have to spend more money than we're spending now. There was one of my favorite expressions in Philadelphia was money talks. Money talks. And I can't repeat the second half of that because it isn't polite but money talks. This is a family show right. Very good Howard. Well is there anything else you'd like to talk about now you've got this moment in retirement. Yeah, thank you well retirement has been has proven to be a stress reliever which is nice, you may have found that out yourself over time and I do miss the job but most of all I miss miss the people that you and I were privileged to work with. We have great staffs in all of our courts and just wonderful colleagues who work really hard to get the work out in a timely way and a professional and concise way and I miss all of them and for any of them who are watching your show. I can only say thank you that they all those years they, they made me look smart, which is tough. Oh, Howard. So, you know, we have great law clerks spend you'll remember working with a lot of them yourself. Yep. We've been privileged to have really exceptional law clerks. In my view we never had enough of them. But what those folks that we had worked very hard and did great work for the monitors so I missed the job. I'll be going back in May to sit from time to time. And over the summer and through the next year, hopefully helping the Supreme Court and the Superior Court to get caught up on the backlog. I know other retired judges are doing the same thing and we just hope we can work through this backlog in the next year, year and a half that would that would be a major achievement if we could, because as you know, and you remember there's always work coming in it's work didn't stop during the pandemic as Rosie Chase pointed out in her lengthy interview with another local media outlet. Still work coming in and we're still arraigning people were not doing on the other end is being able to give them a trial or speedy. A trial that we think they ought to have. Well, I just, I just think it's, you know, the Vermont Constitution guarantees access to court. And I think the circumstances now are that people are not getting access to court, you know if they're being held in jail pending a trial for a year or two. That's that's really wrong. That's just a wrong thing. It is a wrong thing and I hope the legislature and the Supreme Court will get together and and commit additional resources to this so that at a minimum we can work through this as soon as possible. But it is going to take resources because the jury trial as you know is a very labor intensive activity for the defendant and his team or her team for the state prosecution victims advocacy for the courts. There's a lot of work that goes into a jury trial, no matter whether it's a murder case or an assault case or DWI. Those things don't happen in a vacuum they happen because of a lot of teamwork and a lot of hard work to put it all together. And if you're going to resolve a backlog of the magnitude of the one that the pandemic has created. You need to commit more more resources across the board. One of the things I hope the legislature understands I think they do is that you have to look at the criminal justice system that the judiciary judicial system civil family criminal and a holistic way to understand that if you plus up one part you know if you double the number of public defenders. That means you probably have to increase the number of prosecutors and victims advocates. And if you increase the number of judges you need more defenders and you need more prosecutors. And in Vermont, by the way we probably need more infrastructure, we probably bigger and more modern courtroom to be able to handle the load that's here now and of course to address the backlog, which is quite significant as you point out. No the backlog backlog is a real concern, really is a concern. And as you know been the right to a speedy trial in Vermont and there are standards that have been established by the Supreme Court to try to protect that right and to make sure that if the lower courts don't honor the right then there are remedies to the defendant. And that's all well and good but the pandemic has really stalled out the ability through no fault of anyone to give everyone all of the stakeholders affair and speedy trial, which means that there's a real pent up demand on the part of those serious cases in which folks are being held to get them to trial. And so I hope I'll be part of that solution but that's up to the administrative judge in the Supreme Court, but it's, I guess in a sense up to the legislature to in terms of why I think give us to do this. It's up to the legend. Yeah well, I was briefly in the legislature. I remember that. And one of the things that I, that I'll never forget was how few attorneys there were in the legislature. There was like three or four lawyers out of 150 whatever it was it was just in the house we just didn't have much background you know it didn't have it didn't have it there. It's interesting because attorneys understand the way that the judicial system works, the legal system works. Judges are in a unique position because we have to understand how the executive branch works and also how the legislature works, but legislators aren't called upon to have the same holistic view of government that judges are forced to because as you know been a dispute can come before you or I that involves a citizen who wants to try to sue the state or wants to enforce a right under rule 75 that he or she thinks isn't being honored. So judges are in a unique spot here where the smallest branch of government. I sometimes feel like we're not, we're not as loved as we should be by some of the dome. We at least because of our legal training and our experiences and the nature of our jobs and resolving disputes between and among the government and citizens and between two citizens, and so forth. We, we have to have some understanding of how the legislature works and how the executive branch works. They don't necessarily reciprocate every governor I've ever heard of and I've only been around 69 years but what I know of loves to appoint judges and justice. But they don't necessarily spend a lot of time figuring out what judges and justices do after that. They like to appoint us, and then, you know, good luck and do a good job type of thing. Okay. Well Howard, this has been great. I'm so glad you did this. Is there anything else you'd like to add. Again, thanks for having me. This is probably my first and last ever appearance on TV. Well I hope not. I hope your listeners understand that as a rule and I think it's a good rule for mob judges and I think any appointed judges really make an effort not to be in the spotlight not to be making public comment on anything. Not to be on TV, you know we don't have to be elected we have to be reviewed every six years by the legislature which is a can be a trying experience but it's also can be a humbling and clarifying experience as you know, I think an appointed judiciary is a much truer way to make sure that justice is is done in your court system. We're not looking at a billboard that says elect Ben Joseph, judge you know he'll put everyone in jail that sort of thing that you get in the 35 or 40 states where. Yeah. And that's very good point. It's a very good point. Well, hopefully we'll get to do this again someday. And I would be honored to be interviewed by judge Ben anytime. I've been waiting for the zinger questions but fortunately I haven't had any yet use using them all pal. Thank you very much. Thank you Ben for having me thank you for the technical work and I hope to be seeing you all again soon. Good. So on. Bye bye.