Vermont Legislature SmartTranscripts:

[Martin LaLonde (Chair)]: Welcome back to the House of Judiciary Committee this Thursday afternoon, April 2. And we're wrapping up, I believe, our testimony on one eighty one. Saving the best for last, of course, and thank you for being being here.

[Matt Valerio (Defender General)]: You know, thanks for having me. I'm Matt Valerio, defender general. You know, this morning, I was in senate judiciary talking about guns, and I opened with the quoting a famous movie, which said, I think we need a bigger boat, because that moment was, well, you know what happens.

[Unidentified Committee Member]: Yeah.

[Matt Valerio (Defender General)]: Not the same this afternoon. Not at all. Maybe you could trade votes. In any event, s one eighty one, the deferred sentence bill, which eliminates the absolute requirement of a presenence investigation. And I believe that judge probably presented a an addition that said, you you know, that that amendment or addition would is, in my opinion, it's existing law. They a judge can always order a pre sentence investigation whenever the judge wants to do it. There's nothing in law that prevents that, and they do on occasion. Here's the history part. For my entire practice career, and I said this before, but for the record, my entire practice career from the late '80s until I became defender general, deferred sentences did not require that a PSI be part of the resolution at all. When I became defender general, there was a push to allow the defense to ask for a deferred sentence over the objection of the state's attorney. And we were arguing about that for, you know, two, three, four years, maybe five, the first that I was DG. And ultimately, it got to the point where that was gonna pass. And as sort of throwing a bone to the state's attorneys who didn't want that to happen, they were arguing at the time that, you know, defense would file these in every single case, that if they didn't, they wouldn't be doing the right thing. And, you know, I was basically saying, we only file it when it's appropriate, just like every other motion that there is motions to dismiss or to suppress or or whatever. But as a bone to them, they said, alright. Well, if if you don't, we're gonna end up passing this, but we'll put in a provision that says, Well, PSI is gonna be required if and it was particularly to deal with we covered all of them, but to deal with deferred sentences that were over the objection of the state's attorney so that, you know, managing the risk thing. It it was never a requirement for decades and decades before that, but that's how it came about. Over a period of time, the the, you know, being flooded with motions for deferred sentence over the objection of the state's attorneys didn't happen that way. They happened as you would expect they would happen, where there's an appropriate case. State doesn't agree with the defense, and so they file it and make a judge decide. For context, and I don't wanna belabor things if everybody else has talked about this, But deferred sentences come up in interesting ways that diversion doesn't come up. One of the ways it comes up is in cases where the state has a lot of difficulty proving its case. So it might be a serious charge, but you might have a complaining witness who has reenacted their testimony, said it didn't happen. You might have, you know, a victim or witness who has changed their testimony or who has who is not available. So or refuses to show up. And as a result, the state knows, and the defense also knows, to, like, 99%, that state can't prove their case. So the offer will come that, well, can we do a deferred sentence, put the person on probation for a period of time? And if the person satisfies their conditions of probation for the deferred sentence, then the case will be expunged, but at least we have kind of eyes on him or her for a period of time until that deferred sentence runs out. So that's one of the ways it arises. Another way it arises is where the defendant absolutely denies that anything happened and or no crime was committed, and there's big risk. You know, maybe it's a sexual assault or or maybe it's a aggravated domestic assault or something like that. And the defendant absolutely denies that anything criminal occurred. The state's case is wishy washy, but you get the defendant to, like, do a risk management sort of situation about their own life. And they say, well and and these things kinda come together very quickly. You bring them a deferred sentence offer and say, look, if you can do this, this will get expunged. You can always answer this. It's never happened as a matter of law, and we'll have a plea agreement. The thing about those particular types of ones, particularly, is that the time to make the deal is when you get that defendant in the headspace of, I'm willing to accept this. You don't wanna come back three months later, six months later, after a PSI is developed, and the defendant is like, no. Screw it. I didn't do anything. I'm not gonna take this deal. So now they're now they're walking. And this sounds like, well, that's fine. They should go to trial then. It's not really the way the system works. You know, when you get all the parties together where everybody's head is in the right spot, this person is mitigating their risk of what might occur if they're convicted of serious charge, and they're willing to accept a no contest plea to a deferred sentence, and the time to do the deal is right then, the pre sentence investigations interfere with the resolution of those cases. And it puts victims in a bad spot, puts the state in a bad spot, puts the defense counsel in a bad spot. The court gets angry because the defendant, well, said they were gonna do something. Now three months later, now they aren't gonna take the deal. They're gonna withdraw their plea, because there has been no sentence imposed because it's a deferred sentence because it's not so there's no sentence. You have the right to do that. The requirement of the PSI kind of interfered with the resolution of cases that could and should be resolved for all involved. Now I always say that people, kind of lay people looking at it from the outside, might look at these cases and go, what's wrong with that? You know, there are these kind of balances that go on in the criminal justice system when you peel back the layers of the onion, and you're like, that stinks. That that doesn't look that doesn't look right. When you come into plea agreements, nothing looks right. And, you know, you're not negotiating like you would in a personal injury case. You know, I'll take $100,000 I'll take $50,000 We'll meet in the middle, and it'll be $75,000 You know, when you're talking about sentences and years of jail and things like that, this is an impediment to resolving cases that need to be resolved. And I think all of the practitioners over a period of time have come to see that. Now, there are some who may not like it. You know, I'm sure there are prosecutors who feel that this would be problematic. You know, they're giving up ground that they gained at the time that this the original bill was passed that added the PSI in there. And I can see how they would feel that way if you're thinking of it as you know, kind of a zero sum game where, oh, now I've lost something, now I'm getting it back. To me, this was just, I know the way it came up and I know why it was developed. There was not a complaint, really, about this before it came in, but this was part of a deal, legislatively, so that people were more felt better about making sure it worked. And what this does is goes sort of goes back to the old way of doing things, except for listed crimes, which is carne block. And, you know, before, there wasn't even that requirement. There was no there was nothing. But the, you know, amendment that was suggested by Judge Zonay that was run through all of us before we before the day started, actually started last night, kinda later, is fine. It doesn't change existing law. This does change existing law, but I think it's something that makes the administration of the justice system quicker. It also accommodates particular types of cases that are often very difficult to resolve. And I, you know, I just have in mind kind of nasty case, the sex case that I did in Rutland at one time. There were two codefendants, and there was a prostitution situation. The prostitute alleged a nonconsensual sex act. The people were charged with, like, kidnapping and unlawful restraint and aggravated sexual assault and whatever. And I remember my particular client was like, I didn't do anything. I did absolutely nothing. And I said, Well, you know, you're looking at multiple life in prison possibilities here in the event Now, you have a good case to try, which means, like, maybe you have a sixty forty chance of winning. That's a good case to try from a defense standpoint. But you have a forty percent chance of being convicted, and you have two life sentences you're looking at. I have an offer from the state where it's a deferred sentence. And Mike Feinner, I remember this so clearly. He goes, I'm not admitting to any. And I'm like, okay. But we can do a no contest plea, and we can do a no contest plea to what's called an Alford plea. And what that means is, I'm not contesting that the state might be able to prove its case beyond a reasonable doubt. If we went to trial, that's the no contest part. But the Alford plea is, and I'm only taking the deal because the deal is too good to pass up. That's what an Alfred pleads about, and those who don't work in this area. And the client's like, okay, as long as I don't have to admit anything, I'm willing to do this and take my deferred sentence. And I think they wanted at that time, they wanted a five year deferred. Which the guy took, the deal went through, and it would have been a very nasty, unfortunate case to have to try. And the guy had significant potential exposure in a case like that. This that was done without a PSI. The and it avoided a lot of problems for everybody involved. And so that's what this that's not every case is like that. I'm just giving you, like, an example of cases where this is exactly what something like this would be designed for. And that's what ended up happening. You know, the world didn't fall apart when the defense had got the ability to ask for deferreds or or deferred sentences over the objection of the state's attorney. And it didn't fall apart for the defense because PSIs were required in every case. But I think that after a period of years now, it is we've gotten back to the point where we understand that there is a certain benefit to being able to have them default the, We don't need to do this. But the court can always order a PSI whenever they want. So, you know, I I do support the bill. And to me, it's not totally back to the way it used to be, but it's, you know, yeah, you know, it's it's fine. And And there are good reasons for it. And I think that while there, you're gonna have some state's attorneys who would disagree, there are others who would look at it and say, Yeah, either I remember those days and it was fine, or I see the wisdom of it. And I don't play I don't pretend to speak for them or all of them or any of them, for that matter. But it is it seems like it's good policy and a good way to kind of go back to something that worked before and provides a benefit to the system as a whole. And so, you know, that's why I'm fine with it. I'm obviously fine with the amendment. That just makes clear, I guess, that the court can ask for a PSI pretty much in any case they want to. I don't think there was any prohibition on it. So and I wouldn't have expected if if a court wanted to, they were gonna do it anyway. So basically, it's fine with me. Good. Alright.

[Martin LaLonde (Chair)]: No. That was very helpful to understand those scenarios that deferred sentences work, and especially where a PSI could kind of hold things on.

[Matt Valerio (Defender General)]: Derailed settlements sometimes. Yeah. Yeah. Did he make it through his deferred? He did. Co defendant had some did not get the same deal and had some other issues. So, you know, if you in baseball, if you bat 500, you're in the hall of fame. That's what I think.

[Martin LaLonde (Chair)]: You bet over 300.

[Matt Valerio (Defender General)]: Yeah. Absolutely. Three out of 10. Yeah.

[Unidentified Committee Member]: We were just talking about this a little bit offline before you came in. What typically why does it take so long to get a PSI?

[Matt Valerio (Defender General)]: They're pretty a true PSI is pretty involved. It's like a background check with various factors that DOC looks at. I think now it's actually taking longer than it has in the past, and it's staffing issue. What are they out here in three to six months.

[Martin LaLonde (Chair)]: Three months,

[Unidentified Committee Member]: the last one that we did, it

[Martin LaLonde (Chair)]: took three

[Unidentified Committee Member]: months to get it.

[Matt Valerio (Defender General)]: Yeah. You know, if they're more involved, if it's a more serious case, it could be, you know, six months. And it's just they are pretty involved. Typically, they are used in the most serious cases where there's a contested sentencing and there's a staffing issue. And that's really the that's really the big problem.

[Unidentified Committee Member]: Yeah. I just it feels like I was trying to I'm trying to I'm not opposed to it, but, again, it feels like like we're is you know, not getting to the root of an of an issue. Like, if one of the reasons to get rid of them in these cases is because they take too long, shouldn't we be addressing why they take so long?

[Matt Valerio (Defender General)]: Yeah. I I mean, I would agree with that if in the ones that like, could we get one done in a week kinda thing. The ones where you you got the defendant in the courtroom, you got the state in the courtroom, we've all come to an agreement, and now is the time to make a deal, PSI, you can get it done in two days, it might not be ready. Those are not as infrequent as you would think. But I think that happens, you know, when people, you know, they just disagree.

[Unidentified Committee Member]: That makes sense. And in that case, you wouldn't be able to there's nothing in existing statute that would say the parties in the court could agree to waive.

[Matt Valerio (Defender General)]: Not under the current law.

[Unidentified Committee Member]: Right.

[Matt Valerio (Defender General)]: And it also is yeah.

[Unidentified Committee Member]: And another scenario would be that the plea agreement would result in someone getting out of jail and that waiting on the PSI is delaying.

[Matt Valerio (Defender General)]: Yeah. So now you get an expungement opportunity, and you've been held because of these big cases, you're being held for god knows how long till you can get to this point. And they're like, you get to walk out today. You have an expungible offense, and, you know, you might not even have guessed to go to number three, and you don't have to necessarily admit anything. You know, you get you know, those things, there's a lot of incentive there. And this you know, and you also these don't happen typically if the state has a rock solid case. These come up when the state also has, like, the exposure potential that this person We go to trial, this person walks, there's nobody looking over his shoulder or her shoulder, and they don't have the eyes of probation or the requirements of probation.

[Unidentified Committee Member]: And what do you say to the criticism that this change will actually reduce the ability or opportunity for the victim to for for a victim or victims to be involved in in the process or in the in the outcome, influence the outcome?

[Matt Valerio (Defender General)]: Well, one of the reasons these tend to come up is because there's issues with the victim as a matter of evidence. They still have the same right to comment on the plea agreement as they would in any case. And, you know, my guess is that the state's attorneys are taking all of that into account before they make a deal. You know, they know the strength or weakness of their primary witness in in victim oriented cases. You know, these these also come up in, like, nonvictim oriented cases, unlawful trespasses and burglaries and, you know, that kind of thing, where, you know, there's not a crime against a person per se, and they're factual issues. They're not all sexual assaults and domestics, you know? So don't think that it really changes the ability to have input. What it does is it eliminates the requirement that they testify in front of a jury and get go through the unfortunate reality of what happens in a trial.

[Martin LaLonde (Chair)]: Any other questions for Ben? No, I think we're good. Alright. Thank you so much for coming over.

[Matt Valerio (Defender General)]: Yeah, no problem.

[Martin LaLonde (Chair)]: Alright, so that's our last witness, but just for everybody's heads up and keep from one study of by tomorrow morning. So after the floor, I have scheduled for committee discussion and possible vote. S one seventy nine, which is the act relating to the Uniform Disclaimer of a Property Interest Act. That one is gonna go to ways and means after it comes out of here. S one eighty three, an act relating to home improvement and land improvement fraud. At this point, we would be passing it and going right to the governor. I don't think there's any amendment on that. S two zero three, the act relating to penalties for second or subsequent violations of operating a motor vehicle under the influence of alcohol or drugs. We still need to talk about that because I'm not sure that everybody's in the same place with that one, but possible vote. And there is one minor amendment so that would be going back to the Senate if we vote it out. And then I think we just did S one eighty one, which also has an amendment and would be going back to the Senate. But we'll have a discussion with possible vote on all four of those. Kinda clear the deck before we look at forensic solutions in two zero nine and prop four. Yes.