Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: This Wednesday morning, February 4, and she's gonna be taking up H744. It's I'll give you a real quick background, and then I'll have her walk through a very short bill and Judge Kretzlaw, who's going give us some deeper backgrounds and the reason why we have this. So this came before the Joint Judicial Rules Committee this past fall. Barbara chairs that committee, and Tom and Ian and I are on that as well. Unlike most of the rules, it seems, that come before the committee, this one seemed to be quite controversial. And we had a lot of interest in this, particularly from the state's attorneys, from the BSEA, from law enforcement. And the underlying language that was prompted a change is actually language that the legislature put into this rule some number of years back. And rather than have that hearing with the judicial rules, we thought that this would be one that since the legislature, I would say erring slightly in the language that we had in the rule before that we should be the ones to fix our mistake. And it would give us a chance to have a more open and a broader discussion and testimony. So that's how we've ended up. So the fiscal year, which is very close to the language that was in the rule that was proposed, except for one change of a shall to May, which is always a very important kind of change. But I'll let Eric kind of explain the I think probably a slight explanation of what the judicial rules and how we look at rules would be in order, Eric, and why the legislature can also be the ones that can modify a rule. So I'll turn it over to you, and then you can walk through the language.

[Eric Fitzpatrick, Office of Legislative Counsel]: Okay. Thank you, and good morning, everybody. Eric Fitzpatrick with the Ledson Committee on Judicial Rules. Sorry. That is true. Not not necessarily the only reason I'm here. With the office of branch counsel, in my capacity as counsel for this committee as well as counsel for the legislative committee on judicial rules as the chairman, you'll see that the proposed bill in front of you, rather than proposing to amend a statute, proposes to amend a court rule. It's rule three of the Vermont Rules of Criminal Procedure. And in fact, that particular rule, you may even recall, this committee has spent quite a bit of time on over the last couple of years. It was in the context of, assaults on health care workers. Remember that was, a lot of work was done because this rule generally involves, arrest without a warrant and sets up the types of offenses for which an arrest may be made without a warrant, as well as outlines some procedures. And that's what this committee has dealt with many, many times over the years. And as the chair was saying, the legislature in general has authority under the constitution to also amend court rules as does the court itself has the authority to promulgate court rules. Their legislator legislature has a role in amending them within the context or within the confines of the separation of powers. So, obviously, if there's a court rule that involves an inherently judicial function, then that would be something that the legislature wouldn't be able to amend. And, obviously, there's also sometimes some disagreement on the gray area. There well, you know, is that a judicial function, or is that a legislative function? As it happens, this particular rule, rule three, has been the subject of both judicial and legislative action many, many times over the years. So I think there's been even the comments to the rule indicate that there's a role for both branches to play in this particular role. Just on this, it's timely today,

[Kim McManus, Department of State’s Attorneys and Sheriffs]: I'll be reporting H5, which is on the hearsay exception rule. And so I think we've done this, right? It's not new for us this year. We've modified rules. Yep.

[Eric Fitzpatrick, Office of Legislative Counsel]: Yep, that's for sure. And it's in the constitution that you have the authority to do that. As I say, balanced by the separation of powers, as long as you're within the judicial function, because separation of powers is in the constitution as well. So you gotta sort of thread that needle. And I think, as I say, everybody knows that in that gray area, there's sometimes some room for debate about whose role it is. But in this particular case, rule of three has been worked on by this committee and the legislature off and on for many.

[Rep. Martin LaLonde (Chair)]: So that's a bit of

[Eric Fitzpatrick, Office of Legislative Counsel]: the background. Could No, that's fine. That works? Yep. Okay. So then the question is, Ari, what's the proposal here in H744? And as I mentioned, sort of the way rule three works, the first part

[Rep. Martin LaLonde (Chair)]: of it is it has to do

[Eric Fitzpatrick, Office of Legislative Counsel]: with arrest without a warrant. And the first part of the rule is a list of when an arrest can be made without a warrant. And that, generally speaking, is for felonies. Either if the officer has probable cause to believe that a a felony either was committed or is being committed in the presence of the officer, so felonies. Misdemeanors, if they're witnessed, generally. So if the officer has probable cause to believe that a misdemeanor is being committed in the presence of the officer. And then there's some, but not all, non witness misdemeanors. And that was, you may recall, that's what this committee was working on with respect to a misdemeanor assault of a health care worker and preventing health care workers from performing their duties, that sort of thing, you're adding to that part of the list. So that's the first part of the rule, the offenses that are covered. The second part is procedure, and that's what we're talking about today. That's what page seven forty four deals with, which is the procedure. And so if you think about it, if someone is arrested without a warrant, there's obviously a question of, well, what next? What then? And this particular proposal has to do with, whether the person is released or not. So if there is an arrest without a warrant, so in other words, let's assume it fits into one of those categories we just described, and the existing language of the rule starts on line 16 of page one, excuse me, the law enforcement officer has to contact a judge for determination of temporary relief pursuant to rule five without unnecessary delay. So they arrested the person without a warrant. They gotta contact a judge right away and discuss the issue of whether the person's gonna be released or held. And the law enforcement officer has to provide the judge with an affidavit or a sworn statement, and he turned over to the next page, upon which the determination as to temporary release may be made. So, again, service sets out the procedure there. The law enforcement officer preside this provides an affidavit giving the circumstances of the arrest and the offense and those sorts of thing. So here's the proposed difference. Under the existing language, it just simply says the affidavit or sworn statement must indicate the crimes to be charged by the arresting officer. That's the way it is now. So you see there's no reference to the state's attorney. It's just the law enforcement. The proposal is to involve the state's attorney in the process. And and how specifically? Well, then you look at the language. The procedures and standards established by the presiding judge of each unit pursuant to rule five b. And I should say that under rule five b of the rules of criminal procedure, that the presiding judge of each unit shall establish procedures and standards by which persons arrested with or without warrant other than during normal business hours may be released pending appearance under this rule. So that's provided for in the rule. The presiding judge has to establish standards about that. And you think about the circumstances, right? Obviously, that's a question that comes up because it's specific. It says during normal business hours, right? So it's not during that time and on that people aren't structuring their arrests, so it only happens during The offenders are rarely saying, I'm only gonna commit this offense from nine to five for purposes of the court's convenience. So they oftentimes have to deal with these situations outside of normal business hours. That presiding judges have to set guidelines for their own units as to how those are going be handled. So this provides some detail about how those can work. So as we just said, the procedures and standards have to be established by each presiding judge. And it specifically then says, starting on line four, those procedures and standards may, that's line four, see may, and that's, as Chair Lalonde was saying, that's a distended I'm sure you're with us, because we'll talk more about this. But that's a language difference between the proposed rule that the Committee on Judicial Rules looked at and the language that you're looking at right now. It was shall when the Rules Committee was looking at the proposed rule for decree. Here, the proposal is that it's made. So these procedures and standards established by the presiding judge may require that the affidavit or a sworn statement include the charge or charges that the prosecuting attorney intends to file, and may require that the affidavit also include any conditions of release, including bail or an order to hold without bail, that the prosecuting attorney is requesting. So you see that what's happening there is that the prosecuting attorney is being involved more in this process than is the case under the current language, which only requires the arresting officer to indicate what crime they're gonna charge the person with. And that's the proposed new way that the And now, as to the details of how that would work in each unit, that's up to the presiding judge to establish. But certainly, they have the option to require that the sworn statement that the law enforcement officer submits has to also include some information from the prosecuting attorney.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: This think is that by each different unit,

[Rep. Thomas Oliver (Member)]: by each different judge. Yep.

[Eric Fitzpatrick, Office of Legislative Counsel]: Yes. And which is the case now, each presiding judge establishes their own procedures and standards by which persons arrested with or without warrant, other than during normal business hours, may be released pending appearance. So this puts a little more detail on that. They're already supposed to do, at least generally.

[Rep. Martin LaLonde (Chair)]: Wittenden?

[Rep. Thomas Oliver (Member)]: Well, no, I'm good. Thank you.

[Rep. Martin LaLonde (Chair)]: So only one thing I want to note here is the problem with the current language, which is on line two, says that crimes to be charged by the arresting officer, the arresting officer does not charge crimes. There could be a very simple fix if we were to go with the additional language that the crimes to be recommended or the charges to be recommended by the arresting officer. But I wanted to have a broader discussion of what was also in the rule that we took up in judicial rules. Any other questions for Eric before we go to Judge Treadwell? I don't see any. So welcome, Judge Treadwell. Nice to have you back in the committee. It's I think been a good while.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: It has. Excuse me, good morning, everyone. I'm John Treadwell. I am a judge presently assigned to the Windham Civil Division. I know number of you because I used to appear in that committee very regularly in my former role and also because at least one of you used to appear in front of me as an attorney in Windham County. But I thought it might make sense for me to give you a little background about me and my work in this area before getting into more substantive issues about, the rule. And, again, thank you for letting me appear remotely. I have a juvenile calendar this afternoon, so it will be slightly problematic to get from Windham to Montpelier and back to Windham. So I am presently assigned to the Windham Civil Division for, since I was appointed. I've spent I did spend seven years assigned to the criminal division, five of them in Windham County, two of them in Windsor County. Before I was a judge, I was an assistant attorney general in the criminal division of the Vermont Attorney General's Office for about seventeen years where I regularly appeared in the legislature on criminal justice matters, primarily in this committee and also in the senate judiciary committee. And before that, I was a deputy state's attorney in, the Chittenden state's attorney's office for three years. I've represented the state in, the legislature in the Vermont Supreme Court, in, state court on felony and misdemeanor prosecutions. I've also represented the state, in post conviction relief work in both state and federal court as part of my career before I was appointed as a judge. I am presently chair of the advisory committee on the rules of criminal procedure. I was appointed in 2021 to that position when succeeding judge Zone when he was appointed as chief superior judge. I'm also a member of the criminal division oversight committee and one of the judges on the sentencing commission. As part of my work in the AG's office, I was heavily involved, I think it would be fair to say, in the very significant legislative amendment to rule three that happened in 2001. Basically, we re rewrote and restructured the entire rule. Since then, both the legislature and the criminal rules committee, the court, have been involved in, amending, the rule, various portions of rule three, but also the rules of criminal procedure generally. The purpose of three k, I think, as, Eric has outlined, is really fairly narrow but also critically important. It it deals with the proper mechanisms for setting bail and conditions of release for persons who are detained after hours without warrant pending their initial appearance or arraignment in, the court. This detention can be fairly brief. If a person is arrested in the early morning hours on a weekday, they can be in court that day. The detention can also be fairly lengthy. If, for example, a person is arrested, after hours, without warrant, after hours on the Wednesday before Thanksgiving, they won't be seen in court until the following Monday. So, this, rule does, in fact, affect significant liberty interests of people who are presumptively innocent. The purpose of the rule is to ensure that the judicial officer who is making the decision regarding bail and conditions has the maximum available possible information to make an appropriate decision regarding temporary release on bail or conditions to, protect victims, to protect the community, to ensure that the defendant will actually appear in court on the next business day, and also to protect the liberty interests of presumptively innocent persons. So as chair LaLonde and Eric have both mentioned, there was a proposal that the criminal rules committee had been working on to amend the rule to address this issue with the language that exists presently, is problematic about, charges to be filed by a law enforcement officer since that is not actually a thing. The rule in its current version has been changed fairly regularly in the last, seven years or so. The the amendment to three k to add the requirement that an affidavit be provided to the judicial officer was added in effective 07/01/2018. That's been in effect for more than seven years at this point. There was subsequently an emergency amendment also by the court also in 2018 to address whether or not the prosecutor was actually required to file an information, a charging document in conjunction with that affidavit, that language was clarified and stricken. Then in 2019, in July 2019, the legislature made effective the current language which struck any reference to the state's involvement and, left it that the affidavit has to be provided, and there is this reference to a charge by, law enforcement. Subsequently, criminal rules, took a look at the rule to address the issue of whether there should be an update here. Criminal rules spent a fair amount of time discussing that, and, ultimately, there were three proposals put before the committee for potential changes. The first proposal was is almost exactly identical to the language you have here. The second proposal was that the affidavit must include the charge or charges to be filed by the prosecutor and may include any bail or conditions of release. And the final proposal was must for both, so it must include the charges and must include a recommendation as to bail or conditions of release. The committee's vote, which was unanimous, was to have must for the first option for the charges to be filed and may with respect to conditions of release. That was forwarded to the court. The court promulgated well, did not promulgate it. It was issued for it was published for comment. And, ultimately, as part of that process, after the comment period is run, it goes before the legislative committee on judicial rules. No comments were received by the court or by the committee during the comment period. The matter then went before judicial rules where there was some concern well, comments were raised, concerns were apparently raised with committee members that had not been brought to the criminal rules committee, and, ultimately, there was some discussion about the possibility of the legislature acting rather than the, criminal rules process continuing. I can tell you that, because it was a proposed rule, it has been returned to criminal rules because that will be the next step after a proposed rule is initially reviewed by, judicial rules, and it is three k is on the agenda for, the next criminal rules committee, which is this coming Friday. I did, as a courtesy, in light of the comments that the legislature had received, offer both the Department of State's attorneys, the defender general's office, and the representative of the Vermont Vermont Bar Association the opportunity to submit additional comments to the Criminal Rules Committee for consideration at the next meeting. I can tell you that the there were some comments received from the deputy state's attorneys. They are identical to the comments that were submitted to the legislative committee on judicial rules, and the court also received I mean, the court the committee received, four, comments from four state's attorneys. There were no other comments. And again, we will be discussing the rule again at the next meeting. Obviously, I will be reporting on the fact that the legislature hasn't taken up a proposed amendment rule as well, and that I will be I will have testified on it. So I think it's worth understanding if, at least, in a sort of fairly simple level, how the process works in terms of calls for bail and conditions of release. As Eric made clear, rule five b makes it clear that that's a sort of county by county process. The judiciary, allows only judges to set bail or hold a person without bail pending initial appearance. So if there is an after hours call and there is going to be a request that bail be imposed or that a person be held without bail, that has to go to a judge. If the request is, however, just for conditions of release, on a misdemeanor or felony, if they are a misdemeanor, the call can also be made to one of the court operations managers in the various counties. And if it's for a felony, it can be made, the calls can be made to clerks. With respect to the coverage in that particular county, that varies from county to county. In some counties, the judges rotate, on call and take turns to take calls from law enforcement officers after hours on criminal cases. In other counties, the criminal judge takes the criminal calls, the family judge takes the family calls, and the civil judge generally doesn't get called very often. In Windham and Windsor County, the practice was for the criminal judge to take the calls. So from September 2018 to September 2025, I was the on call criminal judge for seven years. I was the first person called if there was a request to hold someone without bail or for bail. I don't think it can be over overstated the importance of having accurate and as complete information as possible as part of this process. The affidavit will set forth basic facts, establishing that the law enforcement officer has probable cause to believe that a crime has been committed. But those facts alone aren't going to be enough generally for the court to decide what are appropriate conditions of release or bail. Ordinarily, we would want a substantially additional amount of information. Are there allegations regarding prior conduct? What is the record of convictions of the defendant? Have there been prior failures to appear or examples of flight to avoid prosecution? During the incident, is there any information that the defendant was using drugs or alcohol? Are there threats of violence that have been made? What is the defendant's family and community ties? What is the defendant's residence at the time of arrest? If the court is going to issue conditions a defendant from returning to their residence, where would they be residing pending initial appearance? What is the length of the resident of the defendant's ties to the community? These are all facts that judges generally are interested in knowing about in determining appropriate bail and conditions of release. Importantly, the charging decision and understanding that it would only be a preliminary review, but the charging decision that the state will make is critically important because that frames the options that, the judge or the judge is, going to be able to apply or impose. For example, if a defendant is potentially gonna be charged with a felony crime of violence, then they can be held without bail pending arraignment. If, the defendant is going to be charged with, a crime that might be sealable, as the the court would generally be capped at setting bail in the amount of $200. When we receive an affidavit from a law enforcement officer, it describes conduct. And often that conduct can be charged under various different offenses. I mean, I can conceive of a set of facts that could, cover charges from first degree aggravated domestic assault to disorderly conduct. The charging the decision the state may make would have an enormous effect on what conditions or bail that the court could impose. So, from the court's perspective, it is, vital to have that information. Additionally, charging decisions belong solely to the prosecutor. I can read an affidavit and have some idea of what the state might charge, but that is not my job. That is a pure executive branch decision. There are also statutes that expressly there is one statute that expressly involves the state in this decision. A number of years ago, excuse me, the legislature enacted 13 BSA section ten forty eight, and that provides in subsection b, a person cited for domestic assault shall be arraigned on the next business day after the citation is issued except for good cause shown. Unless the person is held without bail, the state's attorney shall request conditions of release for a person cited or lodged for domestic assault. So that's one particular area where the state's attorney is expressly drawn into, that decision. I can tell you that many judges, as part of the practices and their procedures in their counties, require that there be a call to the state, by the law enforcement officer. There have been some discussion with the prosecutor before the judge is called and before the judge makes a decision as to bail and conditions of release. And the discussion in criminal rules was that that is best practices. And, you know, again, I think what the language does here in h seventy forty four is it codifies, in some sense, the practices that are already authorized under rule five b and just, clarifies, a point that, where the court or the judicial officer already has authority. I know I've been talking for a while. Are there any questions?

[Unknown Committee Member]: Ms. Goldberg. Can you just remind us who is on the committee?

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: On criminal rules? Yes. Certainly. There are three judges on the criminal rules committee. Those would be, myself, judge Morrissey, and judge Gray. All of us were, prosecutors in our pre judicial officer, careers. Then there are, there is a representative of the Department of State's Attorneys and Sheriffs. That is Rutland County State's Attorney Ian Sullivan. Chief of the criminal division of the attorney general's office is there as the designee of the attorney general. There is a designee of the defender general, that is, appellate defender Rebecca Turner. There are, there is the chair of the criminal law section of the Vermont Bar Association, and there are, three criminal defense attorneys, a victim's advocate and, a court clerk. So it it it encompasses basically all the stakeholders in the court system.

[Rep. Martin LaLonde (Chair)]: And

[Unknown Committee Member]: you've sort of alluded to issues, but have issues come up a great deal statewide since the change that was made. And I'm trying to remember which of the changes, but it sounds like in 2018 or 2021, makes it that the state attorney doesn't necessarily need to be sharing the charges that they intend to file?

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: So I think the practices vary from county to county, and there are counties, a number of counties that I'm aware of where the state's attorney is involved, either by the state's attorney themselves establishing a policy that they should be involved or, because the assigned judge has required them to be involved. There are counties where the state's attorney is involved when certain charges are filed and not involved when other charges are filed. Wyndham County is one of those counties. That can result in some somewhat unusual requests. I, when I was on hold at one point, I was, asked an individual was arrested for violating conditions of release. That is not one of the offenses for which the state's attorney's officers are called in Windham County, and the law enforcement officer asked me to hold the defendant without bail pending arraignment, you know, and and a request that is not authorized by statute, law, or constitution. Obviously, I didn't do it. I I the I'm not sure if there are problems from county to county. I think that there is the a concern that is being addressed here is ensuring that judges and, court clerks and comms, when they are involved, have the information and have access to the information that they need to make an appropriate and proper decision, regarding detention, which also encompasses potentially protecting the public.

[Rep. Martin LaLonde (Chair)]: Thank you. Good.

[Rep. Thomas Oliver (Member)]: I just wanna make sure I'm a 100% clear on this. Don't have rule three open in front of me. This is a this doesn't have anything to do with, citable offenses. Correct? This is when someone is going to be held. Correct? And then And only when someone is to be held? No. Or requested to be held.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: It it it also applies it applies whenever a person is arrested without warrant and is not being released on a citation down the road. So it's in every case, whether it's an arrest without warrant and either request hold without bail, to hold on bail or to impose conditions of release. It's those three sets of circumstances.

[Rep. Thomas Oliver (Member)]: But it won't so if a citation is not issued, it's not applicable, obviously.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Or if it's if it's citation is issued in there, there's going to be no request for conditions of release. So, you know, your your regular citation for retail theft, I'm citing someone six weeks out. Right. Three k is not implicated. It's only in circumstances where there is going to be a court order of some kind that, implicates, frankly, the liberty of a defendant by holding them or subjecting them to court ordered conditions which are enforceable as criminal offenses.

[Rep. Thomas Oliver (Member)]: So if someone is arrested for, say, a felony by a law enforcement officer and rule three says that they can be lodged, I'm still gonna have to go through the process of speaking to a state's attorney when I may know that, yeah, well, it was a burglary. It's they don't really have to consult with anybody to understand that it was a burglary. And so I still have to talk to a state's attorney in the middle of the night and attempt to get conditions of release as well as bail all arranged with their something that they're looking to have instituted on this subject when they go to court. And when in fact, maybe when they go to court, there's a whole bunch of different information and they may set completely different conduct. I'm just concerned about waking people up in the middle of the night. I think rule three is pretty effective at knowing when to put somebody in jail or when to release them on a citation. And I thought that's what it did. And I think it did it pretty effectively.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Yeah. No. And I mean, it is a process that provides an effective mechanism for ensuring that there is appropriate review of bail or conditions, pending initial appearance. The rule has required for more than seven years now that before there is any call to a judicial officer that the affidavit must be, completed and the affidavit has to be filed, has to be provided to the judge. Some judges are comfortable with the officer reading the affidavit to them. Some judges are comfortable with the officer summarizing the affidavit. Other judges want to actually see the affidavit before setting bail and conditions after hours. That's one of those county by county decisions. The issue here is fundamentally, whether there is additional information that the judge should be considering in determining the amount of bail, whether bail is appropriate even, what types of conditions are necessary. All of these, it's it's provide ensuring that the court has all of that information pending the appearance the next day. The I I understand, every judge understands that when the case comes in the following day, there may be additional information. There may be reconsideration of the charges that are gonna be filed. What happens overnight does not in any way bind what the state asks for the following day and what the court orders the following day. But there can be significant issues if a person is arrested, and it could be a first degree aggravated domestic assault. There may be a request overnight to hold a person without bail pending the initial appearance. But if the state only charges a misdemeanor the next day, the defendant, arguably was deprived of the opportunity for release that they were entitled to under both statute and constitution.

[Rep. Thomas Oliver (Member)]: Wasn't, somebody contacted and read the affidavit that should understand it, the difference between a misdemeanor and a felony and set the bail accordingly?

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Absolutely. The the affidavit may set forth facts that support it being charged as a felony or a misdemeanor. The charging decision, however, belongs to the state's attorney, and I certainly see many affidavits and many charging decisions where the charges that are actually filed are, different than recommended by the law enforcement officer and perhaps different than I would have charged back when I was a prosecutor. But I understand that that's not my role as the judge to determine the appropriate charges to be filed.

[Rep. Thomas Oliver (Member)]: Thank you. I I I'm just I'm I'm asking these questions because while being a a former well, still a law enforcement officer

[Rep. Martin LaLonde (Chair)]: for forty

[Rep. Thomas Oliver (Member)]: years, I've called many judges in the middle of the night. And if they see problem with my affidavit, they point it out and I fix it. Or if it's not charged properly, very, very often, you know, I will call and consult with a prosecutor if I have a question. You know, generally, you will talk to a more superior officer if you have a question when you're starting or learning and bump something by them. If it becomes at all, like, questionable, you do reach out. I I just think making the requirement in the middle of the night might be a bit extraneous.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Yeah. So the language that the committee has in front of it would give it it expressly gives the judge in the county the authority to require the state to be involved in the process. It doesn't require that the state be involved in that process. That is left up to the individual judge assigned to the criminal the presiding judge in that county to determine what they believe is the appropriate policy that should apply in their county. And, again, I think that is, the existing rule authorizes that. This just clarifies the authority under existing rule five b.

[Rep. Thomas Oliver (Member)]: The only other thing that makes me a little nervous about it is I've been known to work in three different counties on any given night. And so it's hard to keep track of.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: That's all. I I certainly appreciate that this implicates after hours work and that there are complexities associated with it.

[Rep. Martin LaLonde (Chair)]: Ian? Hey, judge. Thank you

[Rep. Ian Goodnow (Member; Deputy State’s Attorney)]: very much for being here. So full disclosure, yeah, I'm a deputy state's attorney. I'm actually currently on call. I have my on call phone on me right now. So I think it's important for me to mention that before I ask a question. So you've seen all of the responses that we've gotten from essays and DSAs. You've seen the counterargument around attorney work product? Yes. What's your response? I can elaborate. When is so the charging when is the actual charging decision made?

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: An actual charging decision is finally made when the state files an information the following day. The what we are asking for here is information understanding that it is preliminary as to what the state might expect to charge because that implicates, the decisions that the court can make with respect to bail and conditions of release. I I'm not sure how this implicates work product. The affidavit does not require that the affidavit recount any discussion between the law enforcement officer and the prosecutor as to what the prosecutor's charging, thought processes are underlying the charges. All it would need to say is, the state, may charge domestic assault, aggravated domestic assault. I don't see how that implicates work

[Rep. Ian Goodnow (Member; Deputy State’s Attorney)]: product. Even if then the next day that charge isn't there at all?

[Rep. Martin LaLonde (Chair)]: So now

[Rep. Ian Goodnow (Member; Deputy State’s Attorney)]: parties looking at the affidavit would say, oh, well, what was that on file attorney looking at?

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Right. But that I so I think two points. I don't I don't know how that would be relevant to any discussions going forward either in court or in the case. The issue the following day will be the actual charge filed by the state, not what the state may have thought, it would charge based upon preliminary information. And, of course, the information is gonna be preliminary in the middle of the night. I understand that. I I I don't see how that in any way binds the state or discloses the internal thought processes of prosecutors.

[Rep. Martin LaLonde (Chair)]: Okay. And then Yeah.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Can I make one more I mean, that that it it is it is the practice, I think, in, every county that I'm aware of, and it it may you know, someone could correct me if I'm wrong, that, after hours search warrants are, reviewed by the prosecutor, before act being acted upon by a judge? That is another area. The rule does not expressly allow for that, but, every judge that I'm aware of, before issuing a search warrant in the middle of the night, requires that the law enforcement officer have consulted with, the prosecutor before seeking a warrant. I I I don't think that implicates, work product and whether that somehow discloses that the state's attorney believes that there is probable cause to believe a crime has been committed and evidence of the commission of a crime will be found in that particular location.

[Rep. Martin LaLonde (Chair)]: So if the judges can already do this, I mean how, why do we need this and is the system broken? That's not what I'm hearing. It sounds like it's working and this is a good philosophical discussion, but is the system actually working sufficiently?

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: So, I mean, as we've mentioned, the existing language in the rule needs to be changed.

[Rep. Thomas Oliver (Member)]: Right. Agree with that.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Yeah. That and as part of the process, the thought of the committee, the criminal rules committee, was that, clarifying the authority of judicial officers consistent with rule five b, was appropriate under the circumstances, and that's what we were seeking to do. And I think that's exactly what h seven forty four does as well.

[Rep. Martin LaLonde (Chair)]: Although probably the use of shall or must instead of may actually didn't just clarify that. I well,

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: yes. Yes. I suppose I think a judicial officer in a county could require that the affidavit include this information. So even without the language of a rule, the judge could say that if I am going to get after hours calls, the affidavit must include this information.

[Rep. Martin LaLonde (Chair)]: So so this wouldn't necessarily change for practice at at the bill with the with the may instead of a must. So, and is there, and we'll hear more testimony, but I think, you know, based on what you've already seen, is there a compromise somewhere of this? As far as there being only certain charges or or is that really something that should be left at the discretion of the individual judges?

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Well, I I think judges and judicial officers who are making these decisions during the night should have the authority, to determine what information they believe they need to make a proper decision, a proper decision to protect the public, to protect the victim, to ensure that the defendant appears the following day, and to protect the defendant's liberty interest. It is it is important that we be able, if we need to, to ask for this information. And if that's what we're asking, that's what this language does. I'm not sure what the compromise is, that somehow there are cases when we're not allowed to ask the state's attorney to weigh in, that would be concerning to say the least.

[Rep. Martin LaLonde (Chair)]: Yeah. Okay. Fair enough. So so the way it works, I mean, can it be, under the current system, more of an ad hoc situation that depending on what the affidavit says, if the judge needs more information, that's when the law enforcement needs to bring in the state's attorney?

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: It could, but we're trying to make this process as efficient as possible involving as few phone calls as possible at 02:00 in the morning. The reality is, again, that judges, and I know, for example, judge zoning is one of these judges when he was, before he was chief superior judge, require the state's involvement. There are other judges that do that. As long as that is still a possibility, I don't know that a rule that doesn't allow for that is appropriate.

[Rep. Martin LaLonde (Chair)]: Right. Good. Understood.

[Unknown Committee Member]: Yeah. Okay. Yeah. Good. So take me a little bit of time to to catch up with all this, verbiage with, the the lawyer stuff. But are we tied up on this one word on line seven two and then require, and what the chair was just implying, I think was, may or may require or must require. Is that really where this wording is coming from?

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: So, the the may must question, the question of whether the affidavit must contain certain information, it is not in this draft. This is only may. This is only giving the the court, the opportunity the the the the court the right to the clear right to ensure that that information is involved. It's left up to the individual judge. If the language was must, the judges in the county wouldn't have a choice as to whether this information would be included or not.

[Unknown Committee Member]: And that must now you're implying that I understand you must before in the other areas. Now you're going back to the must on where I'm asking about line seven?

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: So when you're talking about line seven representative, you're referring to the statement of purpose of the bill. Is that correct?

[Unknown Committee Member]: Yeah. To. You said first word to. Which page? First page or First first page.

[Rep. Martin LaLonde (Chair)]: This,

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: bill proposes to permit courts permit courts to require certain information. So I think that the the to require has to be read with the permit in the prior language that it's, it it's clarifying that the judge has the opportunity the opportunity to, require it. They don't have to.

[Unknown Committee Member]: So you're on line six, I'm on line seven, you've got, I'm on line seven where it says, says to require, that's where I'm hung up on is that to there.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Okay.

[Unknown Committee Member]: Should that be should that be a different word that may So or

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: this that's only the statement of purpose for the bill. The actual language in the bill, the operative language is on page two between lines two and seven, which describes how it actually will work, and that's where the May language is in there. The statement of purpose is just an overarching description of how it is intended to work.

[Unknown Committee Member]: Going back not to keep beating this, but going back to seven, when you have that word two in there, it's like when I first came in here, this man shell, those two words, they're just kind of like, were very, very important different words, right? Interpretations of it, the whole nine yards, right? So I'm just wondering if that affects what we're trying to do, what the bill proposes to do on page two. If that makes sense.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Yeah, it does make sense. I don't believe it actually affects the language on page two. The distinction you're drawing is, I think, an an important distinguish distinction distinction between may, which is permissive, and shall or must, which is mandatory. And, the description here on including line seven on page one, describes a permissive, a May based regime, which appears on page two, between lines two and seven.

[Unknown Committee Member]: Okay. Thank thank you. Thank you, representative.

[Rep. Martin LaLonde (Chair)]: So so we probably have a decision here as well, and after we hear from other witnesses of whether we take action on this or wait and see what happens on Friday. But if we just wait till Friday and we'll just be back to the same place, possibly. We look at this rule again sometime this spring. So maybe we can come to some conclusion here. But anything else from you at this point, judge? And are you able to stay on at all in case other questions come up?

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: I can probably stay on, at least through late morning.

[Rep. Martin LaLonde (Chair)]: Okay. Yeah. Well, hopefully, we'll be done by then. Okay. Okay. Alright. So

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Thank you very much, everyone. It's nice to have the opportunity to appear before this committee again. Yeah, it was good to see you.

[Rep. Martin LaLonde (Chair)]: Thank you, R.

[Unknown Committee Member]: Take care.

[Rep. Martin LaLonde (Chair)]: Thank you. All right, so we'll go to Kim McManus, and then after Kim, we'll take a short break. Sorry.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Right on with the question, or do you have to prepare a statement first?

[Kim McManus, Department of State’s Attorneys and Sheriffs]: The way, my first sentence was amazing,

[Rep. Martin LaLonde (Chair)]: but go ahead. Oh, go ahead. Go ahead, though. Well, it sounds to me like the language that we have here is just clarifying what's happening right now with the bay, that judges can require state's attorneys' involvement or DSA involvement. Zach?

[Kim McManus, Department of State’s Attorneys and Sheriffs]: McManus, for the record. I

[Rep. Martin LaLonde (Chair)]: apologize. You can be a comment. Wow.

[Judge John Treadwell, Vermont Superior Court (Windham Civil Division)]: Heard that

[Rep. Thomas Oliver (Member)]: question in the back of

[Rep. Martin LaLonde (Chair)]: your mind when you testified.

[Kim McManus, Department of State’s Attorneys and Sheriffs]: With me today, I have Deputy State's Attorney Eliza Novick Smith from Chittenden County State's Attorney's Office, who I'm really going to give the bulk of our time to because she is regularly on call, like Representative Goodwin. I had very limited on call experience, thankfully, when I was prosecuted. But I just want to talk about our department wide concerns with this. And just right out of the gate to your question, when this rule was initially proposed with the shell language that every warrantless arrest would need to have a prosecutor involved off hours, We absolutely were wildly concerned with the impact on our office of the on call demands. The change to May doesn't necessarily take that concern away. If anything, it just makes it a little bit more chaotic to Representative Oliver's point of each county having a different set of rules. And to be perfectly frank, I think if this language is here, why wouldn't a judge want to require this if they're able to, to have the prosecutor do that work during the off hours? It certainly makes the judge's job easier. And we appreciate that the judge wants all the information that they as much information as they would want to make these important decisions. We believe that law enforcement has the vast majority of that information that's being requested. And again, as Senator Oliver stated, if they don't, they are checking in with a DSA or SA who's on call. We do have somebody on call in each county available for these questions. We're just concerned that this is a slippery slope to absolutely every warrantless arrest needing to run through a prosecutor and that our prosecutors and again, if we're going to take a break, I do want to make sure all the time is dedicated to DSA Novick Smith to speak to this. You've heard repeatedly the workload that our prosecutors have, on average, 400 cases. In our larger counties, we have more DSAs available for on call, but we have more on call that occur. In our smaller counties, when we have one SA and one DSA, half the office is on call every night. And they need to address these calls during the night and then have their full caseload during the day. These calls can sometimes be a fifteen minute phone call. Sometimes this call is an hour. And our concern is that with this change, we would be increasing the load dramatically to the point where it would affect our ability to retain attorneys and clear attorneys, which we know is an issue statewide for governor I'm sorry. Don't mean to go to Defender General Valerius to this. You mean to make him governor. This summer at Joint Justice, the hiring issues that the Defense Bar is having, we are having the same problems. And we have to explain that when you're on call, you may and again, it's not every night. We know that. DPS was able to send me a few numbers that in 2024, there were 3,468 warrantless arrests in Vermont in the year. That averages out to about nine and a half a day.

[Rep. Martin LaLonde (Chair)]: Usually Just state police or all

[Kim McManus, Department of State’s Attorneys and Sheriffs]: That's all Vermont. These generally tend to come in clumps and groups,

[Rep. Thomas Oliver (Member)]: and we're

[Kim McManus, Department of State’s Attorneys and Sheriffs]: just incredibly concerned. We don't think it's necessary. We don't understand the problem that it's trying to solve. If there are particular instances, like an officer calling to have bail set on a VCR, that's an education issue that can be dealt with in the county with that law enforcement agency, with the SA. It does not require a rule change as proposed. Again, I would like to have it. I don't know if you need a break before we

[Rep. Martin LaLonde (Chair)]: I think we will have a break because think Eliza's gonna be the last witness this morning. So we have plenty of time. But we'll probably need a break first. But let me just ask, if this language was gone and somebody like Judge Zonay back in the day, it sounds like he required this information. And what would the state's attorney do if they disagree with providing? I mean, provide that information. Guess it's

[Kim McManus, Department of State’s Attorneys and Sheriffs]: Again, think we're concerned and I would again, love to move it to my colleague. We're concerned with it then slipping into just a reflex that every single warrantless arrest would need to go through this process. And the workload on law enforcement and on us having to do all of that communication off hours versus now, it's very particular instances where they need to pull in the DSA or the SA, not for every single bail decision that can pretty easily be made with the information that law enforcement has and that the judge can make. We understand that there are particular instances, and like you said, it's done right now. This rule change doesn't affect that. We think it's functioning as is and that the problems that do exist, again, can be managed through education and training. Not going to what we think, again, will just open it up to then becoming just a requirement over time, that any time there's warrantless arrest, off hours, a prosecutor has to be called.

[Rep. Martin LaLonde (Chair)]: So, but as far as, you don't see an alternative or a compromise somewhere in here is what

[Kim McManus, Department of State’s Attorneys and Sheriffs]: I'm Our preference as a department is to strike the new language. We do not think it's needed. We appreciate that in the last sentence on well, what we would recommend would be the last sentence on line two is to change the charge by the arresting officer to language such as recommended by the officer to be in line that the officer is not charging, who's recommending, he or she is recommending the charges. That's all we think that's needed at this time as a department.

[Rep. Martin LaLonde (Chair)]: Okay, great. Thank you. So we'll take a break