Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: House Judiciary Committee this Wednesday afternoon, February fourth. So we're going to hear from the defendant general on two bills, h five seven two that we're just talking about regarding dissemination of electronic case records, and then h five six six, which we took up yesterday afternoon, having to do with diversion and changing from expungement to ceiling. So over to you, Matt, and and whichever one you wanna start with.

[Matt Valerio (Defender General)]: I'll start with the one that I have a better story about first. I'm Matt Valerio. I'm defender general. Age five seventy two, the public access to court records bill. I was appointed defender general in 2001. The first week or so that I was defender general, I was called to testify at a committee that was, I guess, legislatively established but chaired by Justice Duley at the time. And it involved public access to court records that has been churning for decades at this point about what should people have access to, what should they not have access to. And my testimony at the time, like, this is where people anticipate your you know, what you're gonna say, just as Dooley did anyway. And I said, over the years, I've come three sixty on this issue. And he's like, you mean one eighty? I'm like, no. I mean three sixty. First, I thought that, you know, if it was a pub public record, it should be available to everybody. And then I thought, But there are people who would, like, misuse this and use it for purposes that were not good policy for the state, for the people who were involved in the activity, whatever. And the information would be sold, And people's lives and livelihood and futures could be damaged by this information. So we should make it difficult to get to, unless you had a legitimate purpose doing that. And this was kind of at the beginning. And I think I was a little bit pressured in my idea of, like, what the Internet was going to do and what I've said. But I've come to the feeling at this point that because of the Internet in general, there really isn't anything that is secret, so to speak. And the things that are public are not necessarily accurate. So you might see things in back in the day, newspapers. Of course, they don't exist anymore. But online or in news reports or whatever. But they wrote a story so they can sell papers, and they can, you know, get advertisers and all that stuff. And they'll keep writing stories, and they'll keep changing the story as it goes along. But anybody will be able to find the story along the way. And it never really ends up being secret or protected. And your policy of trying to do that really does nothing. And so I came back to the idea that if it's the public record, the public ought to have access to it. And I will tell you that I have not had to go three sixty on that when reading this bill, except for to say that my general feeling about this is that the only way we can assure that people really know what's going on in the public arena is to have them have actual access to the public records. And it should be as easy as possible as opposed to difficult, like having to go to the courthouse to access what would otherwise be public probate records or records in a public file. And to me, that means all of the don't exclude criminal cases and don't exclude court orders, you know, unless there is some particular the default should be, if it's a public record and you could access it in person, you should have a pub it should be accessible online. That's my feeling about it. Because at least then you can say, I'm not distorting this story. I can go to the primary source material. I can read the order. I can read the filings of the attorneys. I can read, you know, anything that is a public record in the file and get, to the extent that there's any truth, the truth, as opposed to relying on secondary sources, people's opinions about what the truth is, people's, you know, third hand, you know, blogs and, you know, Facebook posts and whatever where people get information nowadays. Twenty five years ago, not all of this stuff existed. But I I think I was, oddly enough, thinking far enough ahead to see where this might go. And I I think I was right. And so whenever this public access to public records issue comes up, in my view, the safest way to deal with things that are actually public records is to make them easily available to the public. And that includes criminal information, and it includes court orders. There's no reason it should be difficult to go and get them. And there's no reason, honestly, where we should be requiring either court staff or anybody else to be intermediaries of that information. The more open we can be about the justice system, the less misconceptions we're gonna have about it. And as you probably know, I know, I know that people who've worked on both sides of the aisle know there are plenty of misconceptions about the justice system. If they can read the actual materials, then they can make up their own minds about what's true and not true. That having been said, you know, when you try to protect stuff, you don't get there. So that's my feeling about that bill. And so, yeah, there are changes I would suggest in it, and the changes are primarily that you eliminate anything. Like, there's no reason to take criminal orders, criminal law out of the nothing should be out of the mix as long as if it's gonna be available in person if you have to go there. Yeah. Then it should be available online. That should be the primary default. Now if there and I know there are exceptions, say, in family cases for, like, income and asset affidavits, things that might contain whole or partial Social Security numbers, information that might be court ordered but is protected, medical information that might otherwise be confidential. And those kind of things you really have to have to look look at, I think. But the default is kind of easy for me to get to. The court right now does you know, back back when they were everything was paper, and it's less paper now. But, you know, we used to have a file, which was the court file, and there used to be a red file in it. And in the red file were those things that were not public, like the income and asset affidavit. Like I long time ago, I used to sit as an acting judge when Judge Hudson or Judge McCaffrey, what Hudson was named after. 'd go on vacation for a month in the summer. And my office was right across the street, so I'd go and I'd get these files. Oh, this is the red file. You know? Secret red file stuff is in it. You know? But there's a reason for that stuff. It's just, you know, filings and orders and the like really should be available to the public, easily accessible. And the Internet is the way we do it nowadays. So I would you know, I got that bill late this morning, so I didn't have a chance to, like, sit down and write language for you. But if you had a policy, like, general policy idea that we ought to let people looking look at this stuff online, make it easy. It's easy to write. I mean, I could do it, you know, twenty minutes to kinda fix the exceptions that were sort of baked into what's there right now.

[Rep. Martin LaLonde (Chair)]: I think we got rid of most of that with respect to criminal files. Still, family or probate case records are not dealt with in this particular bill. Really, how it's all going to work is going to be up to the court through its rulemaking process. So that's essentially how we are approaching this. Waiting for the bar to

[Matt Valerio (Defender General)]: the

[Rep. Martin LaLonde (Chair)]: access, but respecting that, how it should be done is really in the court rules process.

[Matt Valerio (Defender General)]: Yeah. I would just be pretty clear on what your policy, what the law is that they need to create rules around because this literally is the same issue that I was talking about in August 2001. So that's that one.

[Rep. Thomas Burditt (Vice Chair)]: For you first, think we have another bill on the wall that deals with records like these?

[Rep. Martin LaLonde (Chair)]: There are a couple bills on the law that, I think one might be getting introduced today, that deal with documents from either the state's attorneys, but there's also I think the H382 which deals with a lot of record issues, but it's not the same as far as the board of access.

[Rep. Thomas Burditt (Vice Chair)]: Bill include body cam footage from law enforcement? Or would it be one or the other ones that potentially could deal with that?

[Rep. Martin LaLonde (Chair)]: I don't think unless unless it I mean, if it's submitted and it's in the court file, then presumably it could be. But it would have to be something filed in court, though this doesn't go to that.

[Matt Valerio (Defender General)]: And I think that's a

[Rep. Thomas Burditt (Vice Chair)]: good thing to do some graphic body cam footage that law enforcement agencies have that

[Matt Valerio (Defender General)]: It shouldn't be public. It could be. I mean, if it's filed as part of a motion or something like that, as an attachment or whatever, The thing about I mean, criminal justice system is not like a pristine place. I see. You know? Like, reality is not particularly attractive at times. But I'd rather have reality than have people make stuff up. But you can say

[Rep. Thomas Burditt (Vice Chair)]: that To be totally transparent, I mean, the agenda that I'm talking about, was talking with Chris Larsen his family, I thought he can put it into that. I'm sure there could be a good debate on whether or not that should be public.

[Matt Valerio (Defender General)]: You know, it's And

[Rep. Thomas Burditt (Vice Chair)]: he obviously doesn't want it public, and there's other but there's he talked about a couple other incidents where families didn't want it public, but but I realized family doesn't always trump what we're doing here. But Speaking of that, I mean, there

[Matt Valerio (Defender General)]: might be times when you have body foot body camera footage of incidents that the state law enforcement would not want public, that the public would want public. And I understand Chris Loris' issue, for sure, as a family kind of thing. Yeah. Other folks who might be victims of law enforcement abuse might want that same footage to be available. And that's not really directly on point with this. Because this this, this would have to be something that's filed as part of a motion to suppress or referenced as part of a motion to suppress. It might be entered into evidence in the course of the suppression hearing or a motion to dismiss or the like. Now that's gonna end up being in the court file. That's gonna be available anyway. Once it is in the record, you don't want people guessing about, at the end, where somebody ends up being you know, a case ends up being dismissed or whatever, and they say, oh, they got off on a technicality. Well, I hate technicality, because that tends to be like the actual constitution, which is not like a technicality in my book. But if you're able to see the basis for the dismissal, then you don't have to make it up where, like, somebody's getting off, getting away with something. It's it's one of the we don't have enough of kind of the civic education that we need to understand why these things happen in advance, so we're kind of learning along the way. The more open we can be about these things, the better, my opinion. And, course, you're gonna have to make that decision. Yeah.

[Rep. Ian Goodnow (Member)]: I just wanted to I guess that does open a door that I hadn't even considered, which is that that means that this should also be considering the evidence. I don't think and I guess I have to

[Rep. Martin LaLonde (Chair)]: be corrected if there is a

[Rep. Ian Goodnow (Member)]: probably videos filed as part of an exhibit for a motion to suppress would be something the public would often want to see. And I don't think that if you access the public portal right now, you would be able to see them.

[Matt Valerio (Defender General)]: No. And my guess is if it's not entered into evidence at a proceeding, it wouldn't be public yet. No. But if you have your proceeding and now we've entered this piece of evidence in and it's part of the basis for the decision and the various arguments on each side. It's part of the case that is public. So, you know, that's different than the evidence portal or the or the like that is, you know, where you're kind of teeing it up. Yeah. So to speak.

[Rep. Ian Goodnow (Member)]: But but I don't think that there currently exists a singular open docket where once it has been submitted for evidence and the hearing's over, that you could access that video. Right.

[Matt Valerio (Defender General)]: Well, that might be you know, if it doesn't exist, I don't know that it creates an obligation for you to create one.

[Rep. Ian Goodnow (Member)]: But if the goal, which I hear is, like, we wanna make this as open and public as possible Yeah.

[Matt Valerio (Defender General)]: That's my general feeling about

[Rep. Ian Goodnow (Member)]: it.

[Rep. Martin LaLonde (Chair)]: Yeah. I mean, so

[Matt Valerio (Defender General)]: So it'd be very hard to put an axe in the it'd be the picture or whatever. Like, physical evidence, you can't

[Rep. Ian Goodnow (Member)]: Yeah. But I'm thinking about, definitely security can put in

[Rep. Martin LaLonde (Chair)]: That presumably will come up in the rulemaking. Yeah. Okay. Yeah. And so we're eliminating the prohibition here.

[Matt Valerio (Defender General)]: I great confidence in the board administrator's ability to handle these things. So do we.

[Rep. Martin LaLonde (Chair)]: So do we. Yeah. Alright, so let's move on to age five, six, the changing expungement to ceiling in the context of divert.

[Matt Valerio (Defender General)]: The general's office has always and will continue to favor expungement over ceiling for exactly the reasons that I just talked about in the prior bill, which is if it does exist as part of the record, then it should be accessible as part of the record. And one of the things that other states have had experience with is that if we are trying to say that first of all, sealing in expungement gives the person who has had the information sealed about them. We create a legal fiction. Right? We know things existed, but they can legally say they don't exist just as though they never did exist. And we know that's all BS. Right? But the question is, you know, the difference between the two is that things that are sealed are almost by nature temporary and accessible but not allowed. Things that are expunged actually don't exist because they've been destroyed or eliminated. And where we have when we look at, like, juvenile court diversion issues where a lot of things are confidential just by nature, the only way to ensure that they don't make it into the public arena is by expungement. And our office has traditionally, and I will continue to wave that flag, support expungement over sealing. I understand there are particular instances where sealing may have benefits, but our office believes that the benefits of expungement in these types of circumstances outweigh the benefits or the issues that might arise with COA. And so we don't support this for it.

[Rep. Martin LaLonde (Chair)]: Okay. Do we have questions for Matt on this?

[Matt Valerio (Defender General)]: Come on, just one? Anything? Ruth can't. No, it's too confusing.

[Rep. Barbara Rachelson (Member)]: You can stand in. I hear what you're saying, and it's making me think about this a little differently. So knowing that we've already passed the law that changed most things to ceiling over expungement, got rid of most expungement, would you say that what we're talking about in this bill, specifically diversion programs and everything that would qualify Again, I know

[Matt Valerio (Defender General)]: Well, this is juvenile.

[Rep. Barbara Rachelson (Member)]: Well, there's juvenile and I'm going to have the section two as adult court diversion.

[Matt Valerio (Defender General)]: Right. Right.

[Rep. Barbara Rachelson (Member)]: Is it But And there

[Matt Valerio (Defender General)]: may be a distinction there, to be honest

[Rep. Martin LaLonde (Chair)]: Oh.

[Matt Valerio (Defender General)]: To think about. Okay. We still would we we still still would support expungement over sealing when you're balancing the two. But I would say if I'm if there would be more weight given in my view to juvenile expungement than to adult expungement. However, one of the things that you didn't do, and I pushed hard to make sure that this didn't go away, was expungement for deferred sentences. And, you know, that's a hill I would stand on pretty much forever. If that remains available, and it is, I don't see why you would not do it use expungement in adult diversion cases as well. Because typically, expungement for deferred sentences can be for much more serious activity, more you know, than what you would see in a diversion case. So to make them akin to each other makes sense. There is I understand the other side of this. And I understand there are some instances where, like, that expungement can cause some troubles. But little by little, the availability of expungement has been whittled away down to these very small areas at this point, and I'd hate to see it go away completely. The you know, the and there is a there's a practical reality here too, that expungement of our our records is one thing, but you're never gonna expunge the Internet. So, you know, I had a case that annoys me to this day, so I might as well tell you about it, where there was a guy who I represented with he had multiple counts of aggravated sexual assault on a minor. And the when the case was filed, it obviously hit, like, front page of the Rutland Herald and other news outlets and the like. He's a guy who had been a colonel in the Air Force, and his job when he was in the Air Force was to carry around nuclear codes. He was literally the dude with the briefcase shackled to his arm who would fly on Air Force One and other Air Force type things with ink bitter coats. And he retired to Vermont, brought a couple of apartment buildings in Fairhaven and got into he had some tenants. Tenants had one of the tenants had a kid. And when they hit, they they stayed in a couple years, they stopped paying rent. They started having some issues. And when he went to evict, shortly thereafter, allegations of the sexual misconduct came up in the course of that. And the thing that made it very kind of supportable was the graphic nature of the descriptions that the child who's three three, four years old made, where, you know, no three or four year old would ever be able to come up with that stuff without having experienced something or seen something very grappling. During the course of an eighteen month investigation, we were able to determine and that the grandfather of the child had actually been lost with the kid. And during the course of the deposition, the that I was taking of the grandfather, who really didn't know why he was being deposed, we started to get into the this area of and state's attorney was like, I'm stopping this I'm stopping this deposition. This guy needs a lawyer. Like, I understand. And the guy who I was representing, you know, they there was actually even, at the time, like a no jail deal on the table, saying, like, look, you that very common back in those days. You get a probationary offer. You'll not no jail time as long as you do suspended treatment and you do whatever. And, you know, admit them. He's like, I'm not admitting anything ever, period. Which, by the way, for most folks, they would take that deal in a heartbeat as opposed to looking at life in life in prison. But he was, you know, this kind of military dude who was like, I'm not taking any deals for anything I didn't do. I don't care. I'll sit in jail as long as I need to if they end up convicting me. Well, the bottom line with this is that the case against him was dismissed. When the case was filed, it was plastered all over the front page of the paper. When the case was dismissed, it was one line in court news that said, case against I'm not gonna say the client's name, but for these two counts brings the counts up again of what they were, right, have been dismissed and prejudiced by by the state. You know, the rumor around town, of course, was that it was, you know, Valerio did his thing again and got so and so off on a technicality, like, the truth. And and so now they you know, the guy is totally ruined. And, you know, I I lost touch with him. He'd probably be a 100 years old now if he was if he was still alive. In any event, the you can expunge whatever you want. You can seal whatever you want. You can. It doesn't matter in today's world because those relevant articles are always gonna be there. The only way that anybody kind of has a chance, like, when you're young, this kinda goes back to that other bill, Where it's legitimate and money, you wanna do the most you can't do to prevent it from being a problem because people are always gonna speculate. This is where, at least in some of these cases, the availability of expungement is appropriate. And it would do, you know, for that guy You know, people didn't, at that time, have access to those files. So they couldn't even figure it out. Nobody really could be able to figure it out because they wouldn't they'd never see the deposition. They'd never see the investigation. They'd never see what the state's attorneys saw and what happened. So the assumptions were that a smart defense lawyer gets creepy eye off. And that's you know? The more we can, like, on the one hand, let the file speak for itself, the better. And on the other hand, where it's appropriate, expunge, not seal, you know, they kind of go hand in hand. It's kind of interesting. They it seems like they should be in conflict with each other, but they aren't really. So that's my story for today.

[Rep. Barbara Rachelson (Member)]: Well, mean, important question about the story, Hucklebell. Was the grandfather charged?

[Matt Valerio (Defender General)]: I believe he was, and I also believe that he was not competent to stand trial. I did not I obviously couldn't have been involved in that. But yeah. I mean, we live you know, the criminal justice system is a fascinating place and also a terrifying place. But, you know, it's my place. So

[Rep. Martin LaLonde (Chair)]: Any other questions for me? I don't see any. Thank you so much. Do we have to schedule for anything else this week? We'll be trying to drag you back in. And so we'll look forward to seeing you and hearing about the budget next week.

[Matt Valerio (Defender General)]: Yeah. After doing it tomorrow, I'll do better than it's not. Yeah. And then when I get to the senate, I'll do it even better.

[Rep. Martin LaLonde (Chair)]: You know, we're here to help everybody improve.

[Matt Valerio (Defender General)]: I appreciate your efforts.

[Rep. Martin LaLonde (Chair)]: Okay. You've gone for that. Alright. Thank you, Matt. And