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Jim Kenyon: Make Vermont’s public defenders truly public

  • Jim Kenyon. Copyright (c) Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

Valley News Columnist
Published: 3/14/2020 10:13:05 PM
Modified: 3/14/2020 10:13:03 PM

In July, Ed Tobin was charged with three misdemeanors for allegedly harassing a longtime neighbor in Hartland and keying an obscenity into the side of her truck.

The 63-year-old Tobin denied the allegations, but he needed legal help, which he couldn’t afford.

By charging Tobin with misdemeanors that carried the potential for jail time and hefty fines, the Windsor County State’s Attorney’s Office — in a strange way — did him a favor.

It meant Tobin wouldn’t have to defend himself or try to scrape up thousands of dollars for an attorney. Under Vermont law, only indigent defendants in cases where a prosecutor is seeking incarceration or fines of more than $1,000 qualify for a public defender. (Many misdemeanors don’t meet that threshold.)

Last summer I wrote about Tobin, who has operated a scrap yard next to his home, off a private road, for more than 30 years. He’d recently lost a legal battle — in which he represented himself — with the Vermont Agency of Natural Resources and the state had placed a lien on his property.

According to state records, a neighbor had reported Tobin for violating Vermont environmental regulations at his scrap yard. The criminal charges filed against Tobin in July involved the same neighbor.

Adam Hescock, a White River Junction attorney, was assigned to his case. Hescock works for Marsicovetere and Levine Law Group, a White River Junction firm paid by the state to represent indigent defendants.

Tobin told me that prosecutors offered several deals that took jail time off the table. He wasn’t interested. He informed Hescock that he wanted a jury trial.

“Those are the cases we defend to the hilt,” Hescock told me. To help with the case, Hescock brought in his law firm’s private investigator.

On Jan. 27, Hescock filed a motion in Windsor County Superior Court on Jan. 27 to have the charges dismissed, arguing the state “lacks credible evidence” to prove the charges.

A week later, the charges were dropped. In an email, Windsor County State’s Attorney Ward Goodenough told me that after the defense motion was filed he determined the state “would not be able to meet the necessary burden of proof at trial, and that dismissal was the appropriate outcome.”

I think it’s fair to say that without the help of Hescock and his law firm’s resources, Tobin could have been facing a very different outcome.

Which brings me to a bill now making its way — albeit, at a snail’s pace — through the Vermont Legislature. The bill extends public defender services to any needy person charged with a crime, “not just to those persons charged with serious crimes.”

Bobby Sand, a former Windsor County state’s attorney, makes the point that all criminal charges are serious.

In today’s world, “we have a much better appreciation of the harmful consequences that any kind of conviction can have,” Sand said.

A criminal record can hinder a person’s ability to get jobs in some professions, particularly those that require state licensing, such as teaching and nursing. Just traveling across the border into Canada can prove problematic.

“If you are self-represented there can be negative consequences,” said Vermont Chief Superior Court Judge Brian Grearson.

“DUI is the perfect example” of an offense that can have life-altering consequences, Hescock said. But since the penalty for first-time offenders doesn’t include jail time, needy defendants aren’t guaranteed taxpayer-funded legal help.

Lawyers who handle DUI cases typically want at least $1,500 up front. Going to trial can cost a defendant $3,500 or more.

DUI cases involve sifting through “technical and scientific evidence,” Sand said. Then there’s the matter of negotiating with prosecutors in hopes of getting a reduced charge. “If you’re affluent, you don’t have to worry about it,” he said. “Your lawyer handles it.”

Indigent defendants “must navigate the system on their own against prosecutors and police,” added Sand, founding director of the Center for Justice Reform at Vermont Law School.

Last month, Sand emailed the Vermont Senate Judiciary Committee to voice his support for the law change. “Fundamental fairness dictates that our criminal justice system not punish poverty any more than it already does,” he wrote.

I haven’t seen a price tag attached to expanding public defender services. But during a visit to the Statehouse last week, I didn’t hear that cost was a deal-breaker.

“It wouldn’t be a stress on the public defender system,” Vermont Deputy Defender General Marshall Pahl said.

John Campbell, executive director of the Department of State’s Attorneys and Sheriffs, said most prosecutors would welcome the change.

“It’s actually easier to develop a case when you have professionals on both sides,” said Campbell, a former Windsor County prosecutor and state senator. “They understand the nuances of the law.”

The Vermont House passed the bill last year, but it’s now stuck in the Senate Judiciary Committee. “I wouldn’t call it a priority bill,” Chairman Sen. Dick Sears, a Bennington County Democrat, told me.

On Friday, a couple of days after I talked with Sears, lawmakers adjourned for a week due to growing concerns over the coronavirus outbreak.

With everything going on in the world at the moment, the chances of the bill becoming law this year appear slim.

But that’s no reason to give up. People who can’t afford a lawyer are used to having the odds stacked against them.

Jim Kenyon can be reached at jkenyon@vnews.com.




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