Vermont Legislature SmartTranscripts:

[Martin LaLonde (Chair)]: On H seven forty four. And back to Kevin McManus. Over to you.

[Kim (Department of State’s Attorneys & Sheriffs)]: Yes. I apologize. In my earlier comments, I just wanted to point out and highlight that our department opposes this on both sides of our house, state's attorneys and sheriffs. We've reviewed this bill and this rule change with our sheriffs, and there's some great concern on the law enforcement resource side of this. Our sheriffs either Sheriff Jen Harlow, the president of the Sheriff's Association, was unavailable today. But she would be happy to come in and speak to the committee if you'd like to hear the impact on law enforcement. I believe you have some other law enforcement potentially who will be testifying, but we did just want to highlight that, that there's concerns about if, again, this process is for it becomes for most, they're all warrantless arrests that law enforcement are going to be writing up these affidavits, trying to get in touch with prosecutors, and there's only one or two officers on shifts in that department, and they're not able to go to calls or are holding somebody longer than they need to because they need to go to the call, come back, finish, etcetera, etcetera. So we do believe it's very important to hear from law enforcement on this issue. But we also just wanted to highlight that across the board, our department posts this. And then I'd like to hand it over to my colleague, please.

[Martin LaLonde (Chair)]: Yes, please. Identify yourself for the record, and, Sue, thanks for being here.

[Eliza Novick Smith (Deputy State’s Attorney, Chittenden County; VSEA Trustee)]: Thank you for having me, members of the committee. My name is Eliza Novick Smith. I am currently a deputy state's attorney in Chittenden County. Before I was in Chittenden County, I was in representative Goodnow's office in Windsor County, and I started my career as a prosecutor in rural Colorado before I finally relocated back east to Vermont. So and I also am the chair of the unit representing the employees of the state's attorney's department for the VSEA, and I'm a trustee of the VSEA. So in my capacity on the board of VSEA, I also get perspective on, let's call it, labor relations issues from across state government. So I'm hoping I can represent perspective not just from the two offices that I have worked in, but from DSAs around the state in the 14 counties. And I certainly won't speak for judiciary staff, but I do have some perspective of the interplay between our offices and how things are managed in the courts in the 14 counties. So Kim teed me up well, I wanna instead add a few things instead of be repetitive. First, to just highlight the process for what it what it means when a DSA is on call. I've done my best to try to well, I'll I'll say in advance of coming in today and in advance of coming before, joint judicial rules in December, whenever that meeting was, that got cut short by the fire alarm. Did my best to get input from DSAs around around the state, so I wasn't relying just on my experience and the experience of the DSAs who I work most closely with in adjacent counties because we tend to have defendants in common. So I can say broadly things that are universal across the state. When a DSA is on call and that schedule is set by the individual state's attorney and the needs and resources of the office. So as Kim alluded to, in a smaller county, there are fewer DSAs. There also are fewer paces, hopefully, and the court schedule may not be as busy. There may not be court every day in every county in the state, but there are fortunately fewer DSAs to handle the caseload. So it's not the case that a DSA in Addison County has significantly fewer cases than I carry in Chittenden County when I was in Windsor County. In fact, Windsor County has about a third or a quarter of the attorneys in Chittenden County. I think I had the same number of cases when I was in Windsor County as when I moved up to Chittenden County. So DSA has got a $50 per diem to be on call. No, there's no separate schedule for night shift when we're on call. Similarly to the judges, right? The judges have to come in and sit on the bench the next morning and DSAs have to come in and do their jobs in the morning also. DSAs do get called for a larger universe of cases after hours. Anytime someone, we call them untimely for reasons that were never clear to me because really what we're called for is an unattended death when someone dies without a witness, someone not in a hospital, for instance. There's a requirement that the state's attorney or a chief state's attorney be contacted to give an opinion or affirmation of whether the body needs to go for an autopsy or be released to the family or to a funeral home directly for funeral arrangements. Sometimes there's a need for the deputy state's attorney who's on call to actually go out to the scene of a crime or go out to the scene of particularly the most serious cases to help law enforcement navigate the investigation and make sure that there's an additional set of eyes and an additional person with legal training or higher level of legal training to help run the investigation. In fairness, those kinds of call actual physical call outs to a scene are rare. I did ask about that. It's not common for a DSA to be called out to a crime scene on shift. That's a function of the training and work that we do during workday with our partners in law enforcement and the training they got at the academy. For the most part, law enforcement handles those scenes and calls our office for guidance as needed when they're on scene doing investigations. But those are other kinds of calls that DSAs get after hours. A complicated case, even as representative Oliver said, someone with years of experience that he has, has probably more confidence to make decisions on scene. But someone with a newer officer generally needs more guidance and may be making more calls. They may not feel as comfortable talking to their supervisor or their supervisor may want them to get input from the state's attorney. So we take those calls. Some of those cases that we call and consult on after hours result in an arrest. And a judge gets called and some maybe don't or some results. It turns out that the facts of the case are not arrestable or something that's more appropriate for a citation six, eight, whatever the procedure in a county is out, and the judge won't get called that night. But a deputy state's attorney might to consult with law enforcement officer around the state, their efforts during business hours to try to use our resources and time to train officers such that they're not needing as much handholding overnight from DSAs to minimize the interruption at night. But those are calls that DSAs that at night around the state. Child welfare cases are the other big bucket that DSAs get called on. If the Department of Children and Families around the state, I think their level best to not take action to remove a child from the home in the middle of the night. Removing a child from the home is disruptive enough to say the least. And everyone works really hard to not need to do that under cover of night in an emergent way. But sometimes that's not possible. And the agencies and workers make the determination that that needs to happen after hours. And the DSA is involved across the state in working with the DCF officer to put together their affidavit and to communicate with the judge about issuing an after hours custody order. As Judge Redwell said, in some counties, that might be the same judge who's taking the criminal calls, it might be the family court judge for. And that really varies county to county. In terms of how long a deputy state's attorney is on call, that is also quite variable. As I said, it really depends on how many deputy state's attorneys there are in a given office. In Windsor County, my on call shift was a month. So I was on call for the entire month. And when I'm on call, that requires me to be within cell phone service at all times, access to my computer at all times, within the county functionally. I happy to move up to Chittenden County and the on call schedule is slightly different. We're on call for a little less than a week at a time, and there's more of us to rotate around. Although I think it ends up perhaps coming to something comparable in terms of how many nights I'm on call or one is on call over the course of a year. But I think it has implications for the discussion today. One of the sort of labor concerns that staff have are about the impacts of the disruption, the additional disruptions of sleep and our ability to come in the next day and do our jobs. Law enforcement works the night shift, and so they get to end their ten, 12, perhaps more with overtime shift. And they go home and they go to sleep when a deputy state's attorney is on call on a busy night. There are nights when deputy state's attorneys are on call. Representative Goodnow has had this experience where we are very lucky to wake up in the morning having not been called at all. And those are really good And then there are nights under the current rules as they are now, where we might get woken up four or five times a night. And you come into work the next day and it's very challenging to do your job then. And we don't really have an ability to get the trial that might be up the next day or the substantive hearing continued because that's not fair to the defendants who have been waiting for their hearings in court and the court to effectuate their due procedural rights. It's not fair to victims who are also waiting for their cases to be resolved. But the sleep deprivation is a real challenge. And it's challenging enough for me in Chittenden County, where I suspect some of the volume is the change is likely to be perhaps more significant than in a county with lower case volume, the nightly disruption if these changes were to become mandatory is pretty significant. As this committee knows, there's just not slack in the line in our department. We run an incredibly tight ship. There's no middle management. There's no supervisors who supervise deputies or administrative staff and then report to the state's attorney. It's the state's attorney and it's deputy state's attorneys, and that's it. Often when folks leave, our department holds positions open to bank vacancy savings to balance the budget. I know that our department has come and requested additional positions every year, and that's always a tough ask. We haven't been able to All of the positions that I think we've From a labor management perspective, if I'm the only person in charge, we could really use to be able to have a little bit more slack in the line to do things like staff someone overnight in every county. We just don't have now. And I won't belabor the point too much because I think the written testimony submitted to the committee from my colleagues around the state really highlights their concerns about the impact this would have on their ability to do their job. I do want to say that I foresee I see a universe in which there are mechanisms that could make this work. There could be additional resources to provide more compensation to DSAs or to staff more positions so that someone could be available to do real substantive work overnight. Think the conversation earlier notwithstanding, this would really be requiring the deputy state's attorney who's on call to replicate the work that we do in the morning anyway. So after hours, someone gets arrested. And in the morning, as Judge Treadwell alluded to and discussed directly, the charging decision is made in the morning the next day when we have all of the paperwork and all of the reports from law enforcement. We have more information, and we have to review the charging affidavits, review any evidence that the police have submitted, and make a charging determination, and then gets filed with the court. That's the information that lists the charges filed. And so what the rule envisions, based on my understanding from the conversation is really for that process to happen again or to not, for the process that happens in the morning, that will still have to happen in the morning to also happen overnight. But with someone who, with now two people who have been woken up in the middle of the night. And and as I listened to the testimony at the outset of this morning, it occurs to me that much of the information that was described as being useful and important for judges to get can be obtained by judges asking questions of officers. And I think that does happen. Judges do have back and forth conversations, and representative Oliver discussed this, with the law enforcement officer who calls them requesting conditions of bail and release. And I'm not sure that we see how either the proposed rule change or seven forty four really remove that dynamic between law enforcement and judges, particularly if there's a concession that any charge suggested overnight would be preliminary and nonbinding on the DSA and on whoever charges the case in the morning. If that decision is going to be made afresh in the morning, what this really accomplishes is requiring another person to be woken up in the middle of the DSA to be woken up in the middle of the night to do work that is going to be started afresh in the morning. And it feels like a solution in search of a problem, I suppose I would say. But that would have real negative consequences for our ability to administer justice fairly during business hours without additional resources. And I wanna speak to representative Goodnow's conversation about work product. Well, certainly, I don't know that the rule requires the affidavit to state in explicit detail the thinking that a DSA has gone through in determining what charges they might file. I worry about a situation in which an affidavit has to state the charges that the overnight DSA thinks are appropriate. And then the DSA the next morning with more information and with more clarity and with more ability to be a little bit more thoughtful and get more information, perhaps communicate with victims, communicate with more witnesses. The charging DSA in the morning makes a different decision, but now we have an affidavit that has said in writing what a different DSA with different information thinks. In many cases, this probably wouldn't be an issue. But in a contentious case, all of a sudden, I foresee litigating in deposition, in hearing why one DSA made a different determination than another DSA or coming up at trial. I think that that's very unlikely that it coming up at trial, but an issue of litigating and pitting two DSAs against each other about why your determination morning prosecutor is more correct than night prosecutor's determination. You know, in thinking about the problems that this might be seeking to address, judge Treadwell mentioned an individual who overnight, it suggested that they there's a charge that they might an individual might be held without bail on. And in the morning, the charge is a misdemeanor. If we're conceding that the charge the overnight charge is not binding, I don't really see how this solves that problem because nothing would prevent the morning prosecutor from reading the evidence and determining that there isn't really enough for a felony. What would prevent that is the judge or the comm or the clerk really asking incisive questions and making sure that the evidence is there or not there and making a determination based on that. The judge already has to be involved in this process. It's only the judge who has the power to determine whether or not they've established probable cause. It's only a judge who has the ability, as Judge Hugwell said. Prosecutors make recommendations about conditions of release and about bail. But those are recommendations based on our review of the file, not the ultimate order is made by the judge or the neutral judicial officer, who I think I would be remiss in not saying is appropriately compensated significantly higher than the most highly paid DSA to do that work and to make those heavy important decisions. The DSA doesn't have any information that the law enforcement officer doesn't have. The information about the person's ties to the community, the information about their criminal history, information about history of failing to appear is all information that we get in the morning and convey to the court in the morning from law enforcement. We have no independent ability to we we have no independent access to that information and certainly no independent access to that information in the middle of the night. The and the charges that judge, Chittenden, is correct. I don't think this is a point of contention, but the the prosecutors do are the ones who ultimately file charges and have the rules give prosecutors leave to be able to amend charges up until trial has commenced. And that's true. That is a piece of information that this rule seeks to make available to the judge deciding about conditions of release and bail overnight that a prosecutor, that is in the discretion of the prosecutor. And I would submit if a committee is looking for different ways to, different language to address this, I would submit that it seems the concern to me, that the concern is about this language in the current role that is stricken in both 8744 and in the proposed changes promulgated by the rules committee that there's an that the issue is the language about the crimes charged by the arresting officer because the arresting officer is not charging crimes. What I think is really happening here is the arresting officer is establishing in their affidavit or trying to establish, these are the crimes for which I believe I have probable cause. That's what the judge signs off on at the bottom of the affidavit. That's what the judge signs off on in the information. And so I wonder if language, instead of either version of the new language, if this would be clarified by clarifying that language that I'm looking at of H744, page two, lines one and two, the affidavit or sworn statement must indicated the crimes for which the arresting officer believes there is probable cause, I think addresses this issue and it doesn't need to include and I worry about including another person. I know that the backlog is I don't mean to bring that boogeyman into this room needlessly, but I do think that there are implications for the backlog in the rule as it's proposed in either version requiring additional people to be involved in this chain overnight. I won't belabor the point about sleep deprivation and the impacts that will have on our ability to litigate our case as well and timely. But I worry about adding additional layers. If there was a clear reason that this change was needed and there were significant cases falling through the cracks, I think we would be having a different conversation. But it's not clear to me from my review of my colleagues around the state that there is really a gap that a lot of cases are falling through, particularly one that wouldn't be addressed or couldn't be addressed by in each county, particularly since I think that the proposal envisions giving a lot of discretion to the presiding judge, which I'll get to in a minute. I want to end on that. But that couldn't be resolved by increasing communication and coordination between the judiciary and the state's attorney's offices in each county and figuring out what would work best for each county. I do want to end on two concerns about the structure, recognizing that the rules do in rule five and another place of grant authority to the presiding judge, expanding the authority of the presenting judge gives me and my capacity as the VSEA chair significant pause because it gives functionally the presiding judge significant impact over the working conditions of DSAs. There is no procedure. There's no grievance procedure. The judiciary does not employ DSAs. There is no mechanism that DSAs can use through traditional labor relations channels to address that problem or to address that change in their working conditions with the presiding judge who is the one who makes that decision. Think, so I have concerns about how DSAs can really negotiate what this would mean in terms of the impact on their working conditions with this much discretion vested in the presiding judge. And then also on the theme of giving this in this rule, in addition to rule five, the presiding judge, this is the authority, which which, again, rule five does give the presiding judge authority over how to set procedure for these things after hours. But I'd echo Kim's concern about the slippery slope to creating basically a de facto rule. This has happened in every case. The presiding judge changes with judicial rotation. And the judiciary sets its schedule for how those rotations happen. But from the perspective of DSAs and staff in our department, There is significant friction created by the frequency of judicial rotation when every when new judges come in every year and want to do things in different ways that creates significant friction separate and apart from the impact it might have if these changes to rule three were implemented. But if they were, I foresee a universe in which the way that the county does things changes with every presiding judge. I would hope that that doesn't happen, but it doesn't really create a mechanism for that not to happen. And the disruption of having to get used to different rules every year is significantly burdensome, not only to state's attorney staff, but also to court staff. And that replicates itself in other ways, I would say, for a larger discussion than these rules. But I do Rutland County has been able to very efficiently move cases along in the last couple of years, and I don't think it's unrelated to the fact that the judge Coursons has been there for four years. And in other counties, just inevitably, I mean, when you folks experience this, your colleagues come and go and decide not to run for reelection or get beaten in their elections, the churn is challenging and creates a challenge to being able to move forward and to retain institutional knowledge and all of those challenges. I think this opens the door. I worry that this opens the door for introducing that kind of friction in this after hours procedure also. And I and I do want to just echo, I do have we've lost a lot of institutional knowledge since I've been with the department. I started with the department in 2020, and this committee is aware of the disparate caseloads between prosecuting attorneys in different parts of state government. We already are working against that headwind. We're really fortunate to have be fairly well staffed now. And but we have a lot of DSAs who are replacing folks with more experience who have retired and moved on or and moved on to roles that require less wear and tear than many of the new staff who have come to replace them, who have now, through the trial by fire of not having institutional knowledge to learn from, have really developed a lot of skills that the state really needs. It would be a shame not for them, for the state and for, I think, least importantly, but importantly for me to the folks who remain to lose those folks because of this additional burden. Many of the new DSAs are younger, have young children at home already. They don't have that much additional. We already work more than forty hours a week fully. Everyone in this department feels calling to public service and obligation to their communities and is willing to go above and beyond and not just clock out at 04:30. And I don't know anyone who does, but the additional burden, know, Kathy Hochul just passed billions of dollars for free childcare right across this state, right across Lake Champlain in her budget. And I worry about losing some of those folks that we have been able to hire much needed who have developed institutional knowledge here because there's simply too much. Thank you so much. I'm happy to answer any questions.

[Martin LaLonde (Chair)]: Yeah. I I'm sure we have some questions. I just wanted one. As far as there being different ways that different judges approach things, I don't feel we're in a position to tell the judge that they can't get additional information and require it from the state's attorney to make the decision. So I mean, I think that that's not in the cards. So I think that we either, it seems to me, have a rule that probably states attorneys wouldn't like along what they introduced or what was in the judicial rules, or we leave it to the individual judge's discretion of what they need to make their failed decisions. I think that's the two options that seem to be on the table. And it seems like the latter is what's currently happening. And I haven't heard really strong evidence, actually from Judge Treiber or others, that that isn't working as it is right now. But I don't think that we're going be able to put in a rule that judges are not allowed to wake up state's attorneys. But I think you understand that question. Yes. But it's like, it would seem So I guess the question though is, as it is currently operating, if law enforcement has questions So states' attorneys are sometimes, BDSAs are sometimes being called to be part of the process as far as what's going to be charged if there's a question about that. Is that true? I mean, those gray area cases, is that what's currently happening?

[Eliza Novick Smith (Deputy State’s Attorney, Chittenden County; VSEA Trustee)]: Yes. Yes. I think the concern that Kim described and that I share is the moving to a regime where that must happen in every case. And across the state, DSAs are already getting calls in the middle of the night for giving consultations. But there are folks who come in in the morning on charges that a DSA wasn't called about, but shifting what's required for judicial input to requiring state's attorneys' input on charges, bail conditions would mean that every call that we are now currently not getting because law enforcement has it in hand, we would get. So

[Martin LaLonde (Chair)]: the language you mentioned was that I wanna make sure I had captured it. The affidavit or sworn statement must indicate criminal offenses for which the arresting officer Believes there is probable cause. There's probable cause. Isn't that already required? Isn't that kind of what it's supposed to be in the affidavit?

[Eliza Novick Smith (Deputy State’s Attorney, Chittenden County; VSEA Trustee)]: Yes. I don't think this would be adding a new requirement. Think just clarifying the language. And I could be the of this committee and particularly the members who are members of this committee and the joint judicial rules will have more background than I, but my understanding is that we're having both of these conversations because of the current language in the rule, which or seems to delegate or seems to suggest that the arresting officer is charging the crime. Right, you're right. So I would just suggest that reiterating that what the arresting officer is doing is giving the judge information about the crimes that they believe they have probable cause for is addressing that problem of

[Martin LaLonde (Chair)]: Sure, yeah.

[Eliza Novick Smith (Deputy State’s Attorney, Chittenden County; VSEA Trustee)]: Without adding additional burden on the Without roping in DSAs unnecessarily, who don't really have any more information to give, except for the fact that it seems that the DSA's charging decision prior to a call to a judge opens lanes for calls not to go to judges, it seems to me.

[Martin LaLonde (Chair)]: So it wouldn't I mean, the other option I thought about is indicating that criminal offenses be recommended by the arresting officer, but that's not really the affidavit. Is it more if it's finding some probable cause?

[Eliza Novick Smith (Deputy State’s Attorney, Chittenden County; VSEA Trustee)]: The affidavits do typically I mean, there's not a requirement. Every law enforcement agency, frankly, writes their affidavits a little bit differently. But typically, at the top of a charging affidavit, there is a brief summary paragraph introducing the officer swearing that they are a sworn law enforcement officer and saying something to the effect of, I believe I have probable cause to charge John Doe, date of birth, XXXXX with the following offenses and lists the offenses and section numbers. So that is already there. It's not a requirement that those that that be there in the affidavit or that be at the top of the affidavit in that way. But every affidavit does have some version of that already. And I do think that that maybe is a salient point for the I don't represent the judiciary, but under the current regime, judges need to be called for hold without bails and bail conditions, but court operations managers and clerks can handle the calls if those two things are not being sought. It does occur to me that this does have the potential to unload some after hours responsibilities if there's if there's a state's attorney determination about the charges in addition to officers. And and that not sure if anyone in those roles has been consulted. I certainly haven't discussed with them. Barbara? Thank you for your testimony. This is super helpful. So I just have a couple of positive questions. So

[Barbara Rachelson (Member)]: when you say a different DSA does the case in the morning, is that because there's a rotation and it goes to that person rather than, Oh, you were working on the case last night, so now

[Eliza Novick Smith (Deputy State’s Attorney, Chittenden County; VSEA Trustee)]: it's your case. Typically, every county does this a little bit differently. But typically, week, there's different DSAs who are assigned to charge cases in the morning while other of their colleagues handle whatever hearings are happening at 08:30. It's not possible to be in court and also to charge cases that come in in the morning. So just the nature of our obligations to the court are such that it's not possible to have if I have a hearing in the morning, I can also be charging a case. And so sometimes it's the same person who took the call overnight, but sometimes it's not, and there's not really a way with the staffing levels we have to ensure that it is the same person.

[Barbara Rachelson (Member)]: Did you say you get $50 Yes. It's interesting because I just was trying to look up what other states they for that. I think it's down to county in Michigan that was like $5.50 a week or Well, I guess doing the math might be the same thing, but it's up to $11.62 a week in Michigan per county. Yeah, it's cold. So, yeah, so that does I mean, it's just worth thinking about. So you mentioned you were a prosecutor in Colorado. Yes. Did they do it differently? And is there any lesson learned that you want to share?

[Eliza Novick Smith (Deputy State’s Attorney, Chittenden County; VSEA Trustee)]: There wasn't a comparable rule. It was similar to Well, let me think of the way to do this in the quickest way possible. Law enforcement had much more discretion under the rules of criminal procedure in Colorado to make arrests and charging decisions without any judicial involvement. In Vermont, ultimately, prosecutor files an information and assigns charges in every case. In Colorado, any misdemeanor charge, it's the law enforcement officer who files the charge directly with the court. Prosecutor can amend the charges later, but the charge determination for a misdemeanor is made by the law enforcement officer himself or herself. And in a felony case, there actually isn't a requirement that an information be filed until two weeks after arraignment. So someone is arraigned on preliminary charges and then the prosecuting attorney's office has two weeks to collect additional evidence during which time that person could be held.

[Martin LaLonde (Chair)]: You probably have a different state constitution than we do.

[Eliza Novick Smith (Deputy State’s Attorney, Chittenden County; VSEA Trustee)]: Many, many differences. So I got fewer calls. I'm sort of dependent, but I think I got called a little bit less overnight when I was working out there.

[Barbara Rachelson (Member)]: And I don't think it solved anything, but I'm wondering if people were well compensated for being on call, would that Working in human services, we have the same issue. And it seemed like when it became an attractive thing to at least people could enlist who were willing, like if somebody had an infant, they might not want to take it six more times, but it became a thing that people wanted to be on

[Eliza Novick Smith (Deputy State’s Attorney, Chittenden County; VSEA Trustee)]: a call. Sure. Right. I think for some people, yes, I could see a universe in which you got overtime for your on call shifts, which would, I think, very quickly become significantly cost incredibly costly. But I think also if there's no, I foresee based on the feedback that I got from DSAs around the state that there's kind of no amount of money after a certain point, if you also have to come in and work the next day. And if you're on call for a week and you have many really busy nights, you're functionally working a ninety six hour shift. And we've decided that's not okay for doctors. We've decided that's not okay for corrections officers and for anyone else who's doing really intensive life and death work. Frankly, I don't know how Judge Treadwell was on call for seven years. That sounds really horrible. And I imagine that is appealing to and judges are on call on a different rotation than DSAs are, and they also have to wake up in the middle of the night. I think that that's not lost on me. But just speaking of compensation, are appropriately, but significantly, they're already compensated for their time waking up and DSAs are not.

[Thomas Burditt (Vice Chair)]: Good. Do we micromanage your job too much?

[Martin LaLonde (Chair)]: Me read our job

[Thomas Burditt (Vice Chair)]: prepared to Colorado? I'll make it a little easier.

[Eliza Novick Smith (Deputy State’s Attorney, Chittenden County; VSEA Trustee)]: Look, in terms of the substantive work of setting laws and describing what is and isn't against the law in the state of Vermont, I cannot describe that as micromanaging. Our job is exclusively to prosecute behavior that falls on the wrong side of the law as described by the legislature. I don't think that there is a universe in which that can be micromanaging because that's the entire nature of the relationship between my office and this building. I think that we work in a complex system, so it's hard for me to I'm not trying to avoid your question. I'm not sure micromanaged is a word that I would use. There are a lot of Many points of input from this building and from outside this building that impacts how we do our job. And as we've talked about a little bit here, 14 counties is complicated. And there's different practices in every county, different ways folks use the same tool that come down to personnel in a lot of in most instances, and that's challenging, but that's I don't know that's unique.

[Thomas Burditt (Vice Chair)]: So I asked you a very difficult, unfair question. What I should have what I should have said I should have worded a little bit differently, like how much more difficult is it or something like that. Anyway, getting back to my other point I wanted to to make, when you say the the person that handles the phone call at night and then in the morning, everybody is going to look at that situation probably differently. Right? Not everybody's on the same page. So what was said last night to that law enforcement officer at that time, information given back to that law enforcement officer that I think what I know is he's constantly or she's constantly going back and forth trying to deal with this situation. You're getting one answer, then first thing in the morning, you're getting another answer, and it's like, not sure how anybody does their job efficiently, which seems to be one of the problems that we have here. But I could be reading us wrong.

[Eliza Novick Smith (Deputy State’s Attorney, Chittenden County; VSEA Trustee)]: I think it's really challenging, and I worry that adding DSAs into more places in that chain of communication between law enforcement and judicial officers or comms or clerks risk creating more inefficiency, not less inefficiency. Yeah, And I think that challenging to me to add in that layer. And I would be remiss, since it was mentioned, the implications on the liberty interests of folks who are detained, adding another person that needs to be consulted before a determination about whether that person can continue to be detained or can be set free and given a citation to appear in court, it's gonna add the length of time that people are detained, particularly folks who are not gonna remain detained until they are before a judicial officer. But having a call and make up one more person and have that additional person reviewed paperwork is going to extend the length of detention, probably for a lot of folks, because as a many folks are, while we do have a pretrial detention population, certainly, there are a lot of folks who are not detained pretrial but are arrested and held until they can speak to it, until the officer who arrests them can speak to a judge. And if the concern is about the length of time folks are incarcerated, I don't really see folks who are incarcerated who shouldn't continue to be incarcerated. I see this creating situations in which more folks are actually detained for longer, not the other way around.

[Thomas Burditt (Vice Chair)]: Thank you for what you do, and thank you for your testimony and just good information. Thank you.

[Barbara Rachelson (Member)]: Thank you for your time.

[Martin LaLonde (Chair)]: Any other questions? I don't see any. I guess I thank you very much.

[Eliza Novick Smith (Deputy State’s Attorney, Chittenden County; VSEA Trustee)]: Thank you so much for your time.

[Martin LaLonde (Chair)]: And Judge Treadwell, if you're there and if I could ask you a question about this language, we can get to the other language, but I'm looking at the struck language and that suggestion of the affidavit or sworn statement must indicate the criminal offenses for which the arresting officer believes there is probable cause. Does that at least correct that sentence, as far as the error in that sentence? Or

[Judge John Treadwell]: It it it is correct as a matter of law, unlike the existing language. But, I will gently suggest that, it's not actually relevant for the court's, the judge's determination. We're interested in, the facts that are set forth in the affidavit of probable cause, to determine whether there is probable cause. And generally that is probable cause for the crime that the state wishes to charge, the prosecutor. So, while law enforcement officers certainly write affidavits indicating that they believe that they have probable cause for certain things, ultimately, that opinion is not part of, the court's calculus.

[Martin LaLonde (Chair)]: So if we said, the criminal offenses that the arresting officer recommends should be charged, that's not changing, that's pretty much the same?

[Judge John Treadwell]: Yes.

[Martin LaLonde (Chair)]: We could just strike that sentence and get rid of it because it's not adding anything unless we're giving the authority to law enforcement to charge crimes, we are not apparently, like That

[Judge John Treadwell]: would be a significant change.

[Martin LaLonde (Chair)]: Yeah. So I'd like to kind of understand where the rest of the committee is, but seems to me that the language in here is not really significant, it's not changing what actual practice is now. And it also seems that actual practice is working. So why do we need to put this in there? And I guess you've already been talking and telling us why, but I'm still not convinced that this is doing much beyond what the current practice is.

[Judge John Treadwell]: I mean, I think I said that from my perspective, the language codifies existing practice, and there is value to codification. But if if the intent is to change practice, this doesn't do that.

[Martin LaLonde (Chair)]: Right. And and I guess when codifying language causes all sorts of people to send me lots of angry emails, maybe codification isn't the best thing. No, I'm just kidding. I Since I haven't gotten angry emails, I've just gotten concerns. And I've heard concerns. But on the other hand, I don't see how we can tell the judge that they can't get the information that they feel they need to make these decisions affecting people's liberty. I don't know, where are other folks on this? That's kind of I've told you where I am, which I think we strike the line on one, two and we don't have the new language. That's kind of where I come up, and I'd just like to see where other people are. Well, you introduced the bill. Yeah. But I'm actually now suggesting that I don't like the bill that I introduced. So

[Thomas Burditt (Vice Chair)]: because, I mean, I mean, store it in the trash?

[Martin LaLonde (Chair)]: Recycle, please. So,

[Kim (Department of State’s Attorneys & Sheriffs)]: Karen. Yes. So I think

[Barbara Rachelson (Member)]: I would echo your comments with this, because then there is also the piece that the judiciary can change their rules themselves too. So it seems not great for us to do it when there seems like it's controversial. Let them navigate that. And I agree with just changing the charging piece of it.

[Martin LaLonde (Chair)]: But the only issue with that is that if on Friday they say, the heck with what the legislators thought of this in that one committee room, and they go ahead and they change it again, that our joint judicial rules is going to have to take it up again. And if there continues to be this conflict that will somehow, I suppose, be resolved.

[Barbara Rachelson (Member)]: But it will continue to

[Angela Arsenault (Member)]: be a debate. It can be up for debate at all times, right?

[Martin LaLonde (Chair)]: It continue to be a debate. But when it's a judicial rule that is being proposed, there is a formal process where we have to object to a rule, and the basis for our objecting to rule, Actually, in the eleven years I've been on the committee, have not objected. So we'll have to look again to what can be the basis that usually is really the policy. And I guess we'd have to tie that to what we're hearing from the executive branch, the prosecutors and law enforcement, it could get complicated. So I hope that you take to the committee on Friday, where we're coming out, I'm not hearing people strongly in favor of Unless Angela's about to be strong.

[Angela Arsenault (Member)]: I'm not strongly in favor, but I generally reject floodgate arguments that, oh my gosh, if we do this, all of a sudden, everything's going to change, unless that's true. But if the it is codifying current practice, then I tend to reject the fear based, well, then everyone's going to do it, and all of a sudden, DSAs are going to get called for all these things that they weren't getting calls for before. That's just me not knowing anything other than what we've just learned about what happens in the field. So, appreciating that really just a choice that I make in my life, not to follow those fears. But I also tend to appreciate codifying current practice if it's working. And I haven't heard that it's not working. So I'm confused. A I haven't heard from anyone that the way it's happening right now in practice is not working. I understand why the language that struck doesn't work because it's incorrect. Yeah, I also appreciate the labor concerns, the labor relations concerns. That's a really interesting line. But then I hear you saying, well, we can't judges can and do require certain things of prosecutors. And so as you can see, I'm not really coming down strongly on either side, but I think I might be leaning toward if it's helpful, and I guess I haven't heard that it's helpful, if it's helpful, I support codifying practices. Fantastic.

[Kenneth Goslant (Clerk)]: The rule as written, how long has that been in effect?

[Judge John Treadwell]: Since it was amended effective 07/01/2019.

[Martin LaLonde (Chair)]: Seven years almost.

[Kenneth Goslant (Clerk)]: So what what would happen if we did nothing?

[Judge John Treadwell]: Criminal rules has the, proposal on it agenda on Friday. I will certainly be reporting to the criminal rules committee the discussion that I've heard today, and the committee will decide what next steps to take with respect to the draft of three k that is before them. I suspect that there are, a number of options. One would be to table the existing proposal and not address it. Another would be to, forward it back to the court with a recommendation for promulgation. And the third would be to come up with some different language and either circulate that for further comment or forward it to the court for a promulcation.

[Kenneth Goslant (Clerk)]: So so if the committee decided to table it, is the issue done and just or you folks just continue forward, whether it's the judges or the sheriffs or the state's attorneys, continue forward the way that it is now and from what I've heard is working?

[Judge John Treadwell]: So, I think the reality is that it is unlikely that the criminal rules committee will table the rule, given that the existing language is problematic. So at the very least, I expect I don't know. The committee will decide, but I expect that we would take some action. But I can't tell you how the committee is going to move forward.

[Kenneth Goslant (Clerk)]: Right. And and the the different ideas the way I understand it, maybe I'm way up, but the different ideas I've heard as far as changing language And and this isn't necessarily for you, judge, mean, it's for everybody, but feel free that that could be problematic also.

[Judge John Treadwell]: I I I'm sorry. I don't I don't there are

[Kenneth Goslant (Clerk)]: I guess just changing some of the procedures, it seems like could be problematic

[Judge John Treadwell]: Yeah.

[Thomas Burditt (Vice Chair)]: As far

[Kenneth Goslant (Clerk)]: as how the sheriff's work or how the state's attorneys work.

[Judge John Treadwell]: There are concerns that have been expressed that any change will affect how law enforcement and prosecutors are doing their jobs presently. The the language is in the Mei Mei language you have in front of you, is, I think, the narrowest possible language that codifies existing practice. If, the criminal rules draft, which uses must instead of may in one place, were to move forward, that would be arguably a more significant change because it would take away discretion from the judges in the individual counties to set the practices in those counties.

[Martin LaLonde (Chair)]: Thank you. Barbara?

[Barbara Rachelson (Member)]: So were asking where people stand.

[Judge John Treadwell]: Don't

[Barbara Rachelson (Member)]: have So a question for the one group that it would be interesting to hear from is the Defender General to see if they have concerns about it, but I am concerned about the labor practice. If this is required, it seems like there needs to be a way to not burn out the people that are gonna be affected if that's what we need to be doing for justice. Anybody

[Martin LaLonde (Chair)]: else want to? So I do have a question. So just to confirm again, lines one and two of the sentence, the affidavit or sworn statement must indicate the crimes to be charged. That particular sentence is wrong, first of all. And is unnecessary. I just wanna confirm that part. That's already understood that what is gonna be the athlete.

[Judge John Treadwell]: Yes, is incorrect and it is unnecessary because it is not part of our calculus what the officer believes are the crimes.

[Thomas Oliver (Member)]: Well, guess that last point changes it, but I was just going to say if we're saying we're going to strike the part of line one and line two because it's understood practice and it's currently wrong, and if we corrected it, it's still understood practice, then why the heck are we going to put this other language in here, which is also understood practice that is being done currently? I guess, I apologize. Judge Trivell's point is well taken that the court doesn't consider what the officer is recommending. But still, I think you could apply the same logic. If we're striking one because it's already understood, why would we just put in codifying language?

[Martin LaLonde (Chair)]: Yeah, and so if Yeah, no, I agree. So Judge Treadwell, if gonna be my recommendation to the committee, given what I'm hearing from also from Tom is that in our miscellaneous judicial bill, judiciary bill, we will strike that sentence that's on line one and two. And that's all that we're gonna do. I want your committee to understand that we've gone ahead in doing that. We could just leave it to the committee, but I kind of feel ownership of that sentence having been put in there by the legislature and it's a wrong sentence. So I would like to fix that by striking that sentence. And that would be in the miscellaneous judiciary bill. That's all that I think that we would do. And are people good with that? Because we'll be leaving the rest of this to further deliberations by the Criminal Rules Committee. And understanding, and at least the chair of that committee has heard the various concerns this committee, including four of us who are on the Joint Judicial Rules Committee.

[Judge John Treadwell]: And I will certainly report what I have heard today and will also report that the language in the existing rule is going to be struck as part of legislation in the miscellaneous bill.

[Martin LaLonde (Chair)]: Yes. Thank you. All right. All right, I appreciate your time. Thank you, judge, and thank you to the other witnesses. And it was good seeing you again. Don't be a stranger. Come up with some other good things that we can bring you up.

[Thomas Burditt (Vice Chair)]: I'm happy to do it. You'll have

[Judge John Treadwell]: to check with Judge Zone to see where

[Barbara Rachelson (Member)]: he's

[Martin LaLonde (Chair)]: comfortable Good with point.