 So, we are now live on YouTube, it is Friday, April 23rd, 2021, and we are taking up an amendment to S-145 that is being offered by Senator Ron, and the amendment... 145. ...JRTJ... I'm sorry, the being taken is being offered by Senator Ron, and I'm going to let her explain the amendment, and then we're going to hear from John Campbell, I think Julio Thompson, and Mike Shirley. Senator Ron, do you want me to make you the co-host to share? I think... Actually, can you bring, share it? Sure. Bryn, you're the co-host. She drafted it. Yes, I don't need that kind of responsibility in my life. Just sort of here to give a conceptual overview, and I really appreciate Bryn's help and work on this as judiciary. It's not my sort of native land here, but as I was listening to the debate and discussion yesterday around H-145, in kind of marquee lights, I was just seeing credibility as a big concern underlying the culture that you are trying to create with this bill of accountability around what is reasonable use of force for a police officer. You raised the murder of George Floyd as an example of why language like this would be helpful and important, and as you may have seen, the first report out of the police department was calling three officers standing on someone's back and, including his airway, a medical incident. In the case of Adam Toledo, the first reports before the body cam footage came out were around him having a gun in his hand. So, Dante Wright, I meant to reach for my taser and instead I reached for my gun. We have a question, I think, in this country and in the state around what an officer testifies to have happening in an incident versus what we end up seeing and investigating around body cam footage and other evidence that we may have. As you may also be aware, there was a recent Human Rights Commission case involving Clemens Family Farm where there were concerning allegations that a trooper was coaching essentially someone squatting on their land and that was caught on dash cam footage and other video footage. And so, you know, when I heard the discussion, it occurred to me that I had been working on language with Bryn around giglio files and the ways that we have currently in statute to try and hold officers accountable to accurate and accurately represented information about incidents. What I have heard from several state's attorneys who actually were the ones to raise this with me is that there are agencies and local law enforcement departments that perceive in some way that this is somehow discretionary for state's attorneys to be adding information about falsified or misclassified information to someone's disclosures or giglio files. And as you probably know, this has a lot to do with their credibility to take the stand in a court case, including their ability to be a investigator on the scene of a crime for murders, etc. And we should take that very seriously, you know, their ability to be a credible witness on the stand and if they've had those kinds of inaccuracies before and the information that they've presented. And so what this does, I think, is clarify that it is not discretionary for a state's attorney to disclose this information that, you know, they have a responsibility to disclose this information and to have it on file. And so, you know, you'll hear more from Brynn about the ways that that would need to be embedded in statute in order for that to be the case. But I did have state's attorneys say they welcomed this change because it would stop law enforcement from in some way making it losing trust with law enforcement because law enforcement is seeing it as some something they would have discretion over and that it should be clear that they this is their duty as a state's attorney and anyone on the on the in this, you know, defending the state and the state's interests that they have this information available. I think what you may hear, I did talk to the attorney general this morning and you may hear that it's in the interest of the attorney general's office to try and at some point have this information in a more public repository or some kind of central location, which I think would be a logical next step. But what I'm asking for today is that we clarify that this is a non-discretionary piece of our justice system that we know about officer misconduct and the misclassification or misrepresentation of information before we're giving them the benefit of the doubt about what level of reasonable force they used in a situation. Dick, you're muted. That was great. I was telling Senator White she's muted. And I was muted. Great Zoom. I love it. I finally got hooked up. I'm not sure why it's echoing. Do you have another device going, Jeanette? Actually, you're on. You've got the other device. You're on twice, Senator White. Oh, I thought I went off on that one. No, it's still on. I think that's why you're muted. Why would it still be on? Do you want me to try to remove it? I can try. Remove the blank Senator White and leave us with the real Senator White. That's the evil Senator White and the good Senator. You did it, Peggy. Great job. Thank you. Peggy's going to go to work for IT next week. Keisha, I apologize for having device issues this morning. But so I missed the part, and I did read it last night, but it was the language was a little too legalese for me, so I appreciate your explanation. Is there a difference between purposeful misrepresentation and just reporting something that, in the moment, seemed one way and wasn't another way? I mean, is there a difference between purposeful and just making a mistake? I think it's a good question for the state's attorneys. I only have examples, and it would still rely on the corroboration or the sort of clarification from probably other witnesses or officers. One example was saying that someone was slammed to the ground, but had their hands free, were not handcuffed, when in fact they were handcuffed, which is a very different situation. So the examples that I've heard are pretty sort of clear, one way or another. So I think there's probably some level of discretion that will always exist for a state's attorney to say they seem to be knowingly misrepresenting the information or not, but the examples I've heard are pretty clear. And if you have, say, an officer say, I shot them because they had a gun in their hand and then there's clear body cam footage that they did not have a gun in their hand, I think that's still information that the public should know, regardless of whether or not they knowingly believed that if they thought they saw a gun in someone's hand, I think that's still valuable information for everyone to have and not just take the word of the officer. I don't know if we're at the point, you all would know better if we have body cam footage from every incident in the state, but to the extent that we do not, we still should allow the public to know information about an officer's history of misclassifying information to be able to access justice. So forgive me. Reading the Digger article, Tarnished Badge, I thought that it was clear there are certain officers who state's attorneys just won't call as witnesses because they're not credible or they've been proven to not be credible and often wondered how they can stay on the job. Senator, the other bill last year, a companion to this bill, 145, was the, I can't remember the number, it came out of Senator Waite's committee, it was more on the declassification, I mean, decertification, other measures that can be taken with law enforcement bring. Can you explain the difference between what this does and those officers who are no longer credible to testify on bills? I'm sure that, and doesn't the state already have an obligation to give all information to the defense? So to answer your first question, throw the record, Bryn Herron from Legislative Council, to answer your first question, I'm not sure I can answer it actually because I didn't work on that bill in Senator Waite's committee, but I can tell you that there is existing common law that requires that the prosecution turn over certain types of evidence to the defense and that includes what was commonly called as Brady material and Giglio material. And the idea with the amendment is really to codify those existing common law requirements. But, and you can look at the language, I do think it makes the requirement a little bit broader by the way it defines prosecution team because it requires anyone on the prosecution team who has these types of evidence, the types of evidence that would tend to negate the guilt of the defendant or the types of evidence that may undermine the credibility of a witness. If that information is available to anyone on the prosecution team, they are required to turn it over. So in that way, I do think it extends, is a little bit greater of an obligation than what exists in common law. Other questions for either Senator Rahm or Bryn? John Campbell, Executive Director to state's attorneys and sheriffs. Morning. Morning. John Campbell for the record, state's attorneys and sheriffs. I have to say I'm a little surprised on a couple of things. Number one, that this topic is on this bill, but, and again, also the timing of it, this is like my understanding is third reading. And the whole concept of Brady Giglio would take, we could take a whole morning to discuss it because so many people just misunderstand what the obligations are. This bill, I think what it does it conflates the two legal obligations that we have, not just under common law, we have it also as we're under professional rules, conduct number 3.8. They have a specific rule just for prosecutors that states exactly this about what, that we have to disclose information. So there's a professional conduct side. Additionally, and as Senator Belling knows, there's also rule 16 that is discovery rule. And it tells you exactly what has to be disclosed, which is all Brady material. The Brady material is material that tends to negate the guilt or exculpatory evidence that would be beneficial to the defendant. We have an ongoing obligation to present that, to provide it to the defense. The Giglio aspect of this, what's called Giglio letters that everybody has been referring to, that goes to the impeachment side at a trial. So if we know that there's an issue, not just with police officers, this goes with all witnesses we have. If we know that there's something about that witness that would go to their truth or their veracity or just to indicate any type of bias, then that information is we send it in the letter to the defense counsel and advise them of that. This, and also let me just say too, and I'll do respect Senator Ram, I don't know what state's attorney she's talking to, but this is a mandatory requirement. This is an obligation that's mandatory under common law, under rule 16 and under professionals conduct. There's no discretion here. We have to disclose this information. If not, we are subject to significant sanctions both by a court and also by a professional conduct board. And I believe, I mean, this is another thing you probably should check with the professional conduct board to see if anybody's ever brought, or how many complaints have ever been brought for under 3.8. So, and again, the state's attorney is again, I don't know who you talk, who's been talked, spoken to, but they, we, every summer when we do our training, this is one of the major things we do. We do it repeated all the time, especially for the new individuals coming in that they have these obligations. It's something that in criminal procedure in law school, I mean, you learn this. It's not, this is nothing that's new. This is nothing that's avant garde. This is something that is a basic requirement in criminal law. The, my concern with this, with this language, again, it conflates two specific areas that are already dealt with across the board. And then kind of broadens it. And as such, there's going to be a conflict with what we already have in criminal rules. In fact, what concerns me is I believe that the way this is written here, because it does not include the exceptions that are there for certain, and you'll understand what exceptions, why they're there, but there are exceptions that would probably require us now to disclose the names and identity of confidential informants. I think it would also question whether we have to deliver work product and also the victim's names and addresses. These are all exceptions that are set out and in the rule, the rule 16, but it's not here. By trying to do this quickly like this, I think you all are making a major mistake that you're going to end up having unintended consequences across the board and possibly doing more harm for what we are trying to do. And that is to have more transparency than you realize. Again, I wish I had more time, but I just saw this amendment last night. More than happy. I know I've spoken to this. Many of the state's attorneys last night were very concerned that they were, and they're also very shocked that this was even brought up because of the fact that we do have the continuing obligation and that this is something that they do on a regular basis. Whether they're shocked that it's been brought up or not, any senator has a right to walk up or not. I understand what Bill, I mean, you know that. So, and whether or not it's germane to the bill is a question that Loomer has to answer, if somebody questions. So, I just, it is obviously a fairly complex area of the law that many of us are not that familiar with. But I'm not sure we're getting at the prosecutor. That's, I guess it's a question for Senator Romer or a Bryn. Is this getting at the prosecutor or the police officer? Because if the prosecutor is already required to give this information, what happens if the police officer is not given? There's a case, ironically, there's a case in the Bennington court yesterday where they went to the Supreme Court because they believed the police officer had got the wrong person. And the identity from the witness had to do with did the person have a beard? Did they have a tattoo or a goatee? And did they have silver caps on their teeth? That sort of thing. And the guy that they got doesn't appear to have that. So, there was that question. I don't think that was the prosecutor. I think it was the police officer who did the investigation. So, does this go to the police officer or the prosecutor? Or get at them? Well, I think the answer is really both. The obligation is on the prosecution team, which can include an investigative officer who's working on the case. But I think that the idea behind that, at least the Giglio file portion, is to codify the requirement that the prosecution team turn over any information that might indicate that one of their witnesses could be impeached on the stand. So, I think in that way it goes, it would apply to both. Thank you. That's all. Any comments? Senator White? And would it also apply to witnesses as, John? I mean, not just police officers, but if I'm a witness, it would also apply to me. Yes. Okay. It would apply to any witness who the prosecution is using to establish an element of the crime. Okay. Okay. Any questions for John Campbell? Thank you for being here on short notice, John. Thank you. Julio Thompson, chair, representing the attorney general's office. Julio, thank you for being here on short notice. We really appreciate it. Thank you. I'm just trying to get my video in order. I'm getting it right now. I'll continue. Yeah, we can hear you. I can't see you. It's been a problem this morning that a lot of folks have had technical difficulties. Well, for the record, my name is Julio Thompson, assistant attorney general, director of civil rights unit. You know, our office, the attorney general, certainly agrees with Senator Rahm and others that have spoken that the duty to disclose information that could be used to impeach a witness in a prosecution isn't a discretionary duty. It's a constitutional duty that's been around, that's been articulated since the Giglio case in 1972. So almost 50 years now. And as I heard, I received a copy of this bill yesterday. And as I read in subsection A, and as I heard Ledge counsel say today that the point of the bill here is to codify the, you know, the existing duty and statute for the purposes of ensuring that there's no mistaking that this is a duty and not a recommendation. And I think that from the state's attorney's office that referenced to rule 16 of the Rules of Criminal Procedure, which are issued by the Vermont Supreme Court, I think is important that section B of that does identify in a way the Giglio rule, as well as the exceptions that have been recognized under it. For example, with confidential informants, there's a procedure by which, under the rules of evidence that the Vermont Supreme Court issued where the court would have its own private hearing where, you know, without jeopardizing the disclosure of a confidential informant to see whether the information that's to be provided, you know, is material to the evidence of the case. It is an objective standard that the prosecutor has to follow the rule is that there has to be, you have to disclose if there's a reasonable possibility that disclosure of the information could undermine their case. Not a certainty, but also not a remote possibility either. So to the extent that the rule is articulating the existing standard, you know, I think we're supportive of that because I have not been involved in any discussions about Giglio or anything like that, but if there is this idea that it is something that's a should rather than a shall, then that's something we would certainly want to eliminate. With respect to this issue about the scope of the rule and the prosecution team extending to the police, I guess I would clarify or expand upon what you've heard from Ledge Council about whether that duty extends to people who are not just the prosecutors. And that's already existing law. In 1995, there was a case called the Kiles case, Kiles v. Whitney, saying that information that's known only to the police who are part of the arrest team and part of the investigation is also subject to that disclosure rule. The idea of being that due process doesn't want, or the court doesn't want to have a system set up where the prosecution team kind of sticks their head in the sand once they've got the evidence that's favorable to their case. And so it indirectly mandates the prosecutor to inquire of the law enforcement agency, to affirmatively look for that information to get it. And then I guess the discretion that is involved here is whether the prosecutor is going to use the evidence. The prosecutor gets to decide what witnesses are going to put on. And Giglio really has to do with information that would be used to impeach the credibility of witnesses. So I'm not sure. I don't see an expansion of the existing rule here, which I think is, which makes subsection A, I think, consistent. It's basically an intent to codify the rule. I think that to avoid confusion, it would be helpful perhaps to indicate not only that this confirms the obligations under this case law, but also make sure that it has some reference that it's not intended to override the more detailed procedural rules that are set forth in Rule 16, both under the federal rules of criminal procedure and under virtually every state's rules of criminal procedure. That's where the finer details about what do you do about things like attorney work product, that privilege material at the federal level, there are exceptions relating to national security exceptions that may come up in federal cases. So. Fortunately, Bryn has to leave, Julio. Thank you, Bryn. Thanks, Bryn. So I think it would be helpful if the committee's going to go forward with the amendment to ensure that there's some reference, some kind of preservation language or savings language with respect to Rule 16.1, because I didn't hear today or read in the text any intent to undo what the Supreme Court has done in Rule 16 for a long time. So I guess that's where I would stop and if there are questions, I can answer them. Well, Marley has a question. Thank you. Are there any questions, Julio? I'm sorry. I'm going to go take care of the dog, the barking, the grazing. Senator Bruce, can you take over from the door? Do you want Commissioner Scherling next? Commissioner Scherling. Are you here to comment on the draft? I was good. Good morning, Senator. I was here initially to listen in and comment as necessary. We've only had the bill for an hour and 10 minutes or so, so a little disadvantaged. I'm just briefly and listening to the testimony. A couple things stand out. I agree with both what Julio and John Campbell have said. I'm a little concerned about moving swiftly with something that is so technical for the committee's background. I was a criminal law instructor at the police academy for, I don't know, a great many years from the mid to late 90s through the mid 2000s. And I can tell you that embedded in the criminal law curriculum are discussions of both Brady and Giglio and the mandatory nature of reporting exculpatory evidence, in the case of Brady, and reporting issues of credibility in regards to Giglio. And it's something that we deal with on a fairly regular basis annually in conversations with prosecutors, ensuring I think to a fault, for the most part, I think what you see around the state is in many cases overreporting of Giglio issues, in particular, to ensure that the prosecutor's got the full array of things that may be necessary to disclose under those rules. So that's just a little bit of cursory background on the fly on short notice. It strikes me in at least preliminarily and listening to the initial testimony here that one solution to this may be to codify in a more simplified fashion to point to the rules of evidence and to point to the Brady and Giglio decisions and as the current draft says, their progeny and just state that those things are mandatory for law enforcement organizations to comply with, that it's not just something that applies to prosecutors because by extension, it's kind of meaningless if it applies to prosecutors, but you're not getting reports from law enforcement agencies. Again, I'm not aware of that happening, but if you want to address this in statute in the future, there may be a more simplistic way to do that and ensure that all of the complexity that goes with both the rules and the existing case law are preserved and not harmed in any way. Those are some preliminary thoughts, but again, it is very difficult to digest something this technical with so many potential implications on the existing way that business is conducted on an hour's notice. Thank you, Commissioner. Dick, you're muted. Thank you. I appreciate that, Commissioner. I'm feeling like we're a little bit, that this is an issue that deserves more attention than Senator Romer would willing to introduce a bill on it. I think it should be addressed, but I don't know if H-145 is the place to do it at this point, but the credibility, I mean, it goes back to things, bills that we have passed in this committee regarding innocence protection, the use of lineups, all of those things are all related to making sure we get the right person and that we've done it correctly. And Commissioner Shirling is to be commended, I think, for, I will say in my district, well, a lot of people are upset that a certain trooper has been charged. The fact is it was members of the team that was there that made the case and rather than the defendant claiming something, defendant claims. You don't even remember the situation. It was really intoxicating. There were, I think, three state police officers there, the other two felt that the officers struck the defendant and so it was unnecessary or unnecessary use. Senator Benning, I know you have to run. I do, and I wanted to make a couple of comments before I did. Senator Romer, I appreciate this attempt. As a criminal defense attorney, I'm always into making sure my clients are covered in every respect. As I think about the history of my own business, I've probably represented over 2,500 criminal defendants through the years. And I would say that probably 95.4% of them have, when walking through a police officer's affidavit, stopped me and said, no, the officer's lying about what that is. And in my own head, trying to think through this bill, I feel like I haven't had enough time to wrap my head around how that would all factor into what's going on here. And just so you know, for practical purposes, I practice in St. Johnsbury in Gil Hall and in Newport and then all three of those cases, maybe not with Vince and Lucy, because I don't think I've ever received one, but what we'll call a giglio letter that involves a specific police officer has traditionally been sent by the prosecution. And it is shocking when you get it, because the prosecutor is letting you know that they have no intention of using this person either as a witness in the specific case, or in any future cases going forward. So on the one hand, I'll compliment the state in taking that responsibility pretty seriously. The only nervousness I have here right now is I haven't thought through the process. If I call the state's attorney and I say, well, my client says, police officer so-and-so lied on this occasion about this event, at what point does that information get factored into what you're trying to do here to codify something? And I really personally feel like as a criminal defense attorney who totally supports your bill, that I would like to be able to flesh that out in my head before I leave to any conclusions. But just so you know, we hear a lot about what goes on around the United States and how police officers have been kept secret for one thing or another, as we do priests and a whole lot of other things. But in Vermont, at least in my criminal experience, police officers and prosecutors have been very good about trying to make sure any exculpatory information is provided or even a potential for that is addressed. So right now I feel like there's a system that is working. And if you're going to codify something, which I have no problem with, I want to make sure even every possible base that I've experienced has been covered. And I don't feel like I've got the ability to think that through between now and when this bill gets read for the third time, which I have to say I have to leave. I may not get back to have it during its third reading. So I don't even have that time to digest this. But for the committee, should we go to third reading and something comes up that would be a problem, I would respectfully ask that the bill be passed over so that I can come back and participate in the process before third reading takes place. Will do. Commissioner Shirling, you have your hand up. Thank you, Senator. And in listening to Senator Benning's comments, it struck me that I left out a critical piece of background, which is that in the two agencies that I've been most intimately involved in, in both Burlington and with the state police, when an officer is found to have a veracity issue, in other words, they lie of an official account of anything, whether that's an affidavit or something else, that is fatal to their career. So it should be a rare occurrence that giglio letters, A, occur, and then B, that there are future cases involving that particular officer, because, well, I can't speak to every agency in Vermont in their practices for the most part in the agencies that I'm familiar with and the ones that I have worked in, veracity issues are fatal. And we tell people that in those academy classes that I described as well, that your word is the most important asset that you've got. If the prosecutor can't believe you, if the court cannot believe you, you are absolutely useless to the criminal justice system. So you must report all facts known to you, including those are exculpatory, and your veracity must be maintained throughout your career to a fault. And while that doesn't always happen, because we employ humans who are flawed, that is stressed and restressed from the time people are in the academy forward. Hello, did you want to comment? Mr. Chair, may I say one before Senator? Sure, please do. I just want to say before Senator Benning has to go because as a colleague, I know how stressful it can be if you're the reporter for Bill and you don't know what might happen on third reading. I did tell the chair and the vice chair that if it's the will of the committee to keep looking into this issue and getting more information before bringing an issue like this to the floor, then I would absolutely honor that and not push for an amendment today or even next Tuesday because that's not necessarily enough time to cover all of your basis. So I just didn't want you to leave feeling like you might have to hear this via some other means later today. I appreciate that, Senator. My colleagues are fairly competent in this area actually and sometimes they scare me because they know more than I do. But I think the issue is certainly a good topic for conversation. I would hope that you understand that and that we not try to do something too quickly because it may have unintended consequences and I haven't even thought those out yet even though I support this concept. Thank you. Senator White and then Julio. So I was I was just going to say that it seems to me that all of us are appreciative of the introducing the concept and that and when I think about how much time we spent talking about the word feasible and how little time we have to do this. I personally would appreciate this not being added as an amendment to the bill but coming in as its own standalone bill and really digging into it and taking testimony. So I appreciate Senator Rom bringing it forth. But that's my sentiment and I know that we're running behind time so I thought I'd say that so that maybe we didn't need to continue. Discussing it. Julio did you want to comment? Yeah before I left today I just wanted to address something that Senator Rom mentioned earlier when she spoke about this idea of a registry. So as I mentioned earlier under the Kyle's decision the prosecutor has an affirmative duty to go look for this evidence from the folks including law enforcement that are part of the investigative team. Some of the issues that were raised in the newspaper article and my only source is the newspaper article and the attachments that they provided. Is that you know they're one county? I mean officers move from department to department and there's no I think at least it was asserted in the article. There's no currently right now no easy way other than to just pick up the phone and start making calls to find out whether an officer has something in their in their history that might tend to impeach their credibility like a sustained finding of dishonesty for example. And so I think that irrespective of whether the committee goes for this this amendment and I think as I said we absolutely support making sure everyone understands that they have to follow the Giglio standard. But that one thing that might facilitate the or to or to make sure that the prosecutors are making those disclosures is to make it easier for them to find that information because under both just for confidence in the system and also for the individual accused under Giglio you don't have to show that the prosecutor intentionally suppress the information. It's that they even if it was inadvertent and but it could have undermined the confidence or reasonably undermine the confidence of the verdict then it's a violation. And so making it more difficult for or making it less likely that mistakes or oversights would happen is something that I think that we would look forward to working with folks on. And like I said we'll do it at you know whatever time the committee wants to do. But again it is it is crucial and Senator Rom pointed out or as well as Ledge Council it's not just the prosecutor's office it's the team on that and that extends not only to the investigative officers but in some of the cases you see reported nationally forensic officers you know these headcases and other states where lab technicians have been found to engage in and conduct that's not appropriate and you can read in the newspapers or in the court reporters about disclosures that aren't made that may have undermined confidence in the physical evidence not just eyewitness Massachusetts has had a huge problem with that recently. Yeah so the number of cases have been dismissed or even people who were in jail let out because of the falsification of some lab stuff Senator Rom Well I just wanted to say Mr. Chair you've given me and this issue a great deal of time for the end of session and for the other work you have to do today and I appreciate other senators raising that you know this this is important to us building trust and credibility in our sworn law enforcement officers so that all Vermonters can feel safer in their presence and having them in their community so I do look forward to getting you a bill and doing some of the work we've discussed today so that that bill can be considered in a more robust way by the committee and I just I do appreciate all the time you've given this because it's hard to have a conversation about reasonable standards and and law law enforcement conduct without talking about these critical issues of credibility and eyewitness reporting so really appreciate your time and I will not ask the committee for a vote or anything like that I would I think it's the sense of the committee that it's an it's a topic that deserves to have full blown hearings and I would appreciate I don't think it can happen this session I think it it would be something that we would certainly put foremost next year in this committee of what we're all still here well wait a minute this is the second I was going to say I hope you all are still here but sorry yeah I got a little confused about what year it is so I I would think this would be a topic of importance but I also think the topic of that Senator White has worked so hard on in terms of the decertification of officers and having information when officers go from one district one police department or agency to another is foremost and I went through that with teachers who and obviously in the Catholic Church they're the same problem that people place to another to continue to do things and thank you very much Senator Ron appreciate you being thank you and Julio and John Campbell and Commissioner Shirling and others thank you for being here on short notice and I appreciate it thank you Mr. Chair