Vermont Legislature SmartTranscripts:

[Nader Hashim (Chair)]: Hey. Good morning. We are back in senate judiciary January 7. We are going back to s one seventy eight. We have here, from the state's attorney's sheriffs to provide her first witness testimony on this bill. So floor is yours. Thanks, Nader.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Thank you. And, again, wonderful to see you all back. For the record, my name is Kim McManus. With the Department of State's Attorneys and Sheriffs. And we hope this is one of the few times to appear on the S-one 178, potentially, depending on how others testified. Our initial reaction when we read this film is we didn't understand the why. And I listened a little bit to to Ledge Council and what I was able to Ledge Council presentation. What I was able to gather was primarily this is about the backlog. If it's about the backlog, then we believe that there are tools that already exist that can be used, and other areas of administrative process that we should be focusing on and putting our energy on to try and attack this backlog. A backlog that we are equally frustrated about. We do not like having cases that are just lingering. We don't like that title. We don't like it on our list. It's not something we actively want to hold onto. But there are ways to address that, that would be more effective and immediate than this body of legislating an area of law that is well understood within our criminal justice system in Vermont. Speedy trial law is an area that is clear to us. There is a process. There are factors that are waived. Our law is the same as the federal law. We have a lot of law to draw upon. So if the issue was that folks are not motioning for speedy trial, motioning for a dismissal based on speedy trial, or that judges are not hearing the cases or deciding them properly, then you would understand why they might need to get in to potentially retool. But that doesn't seem to be what the issue is. Dependents right now can move for dismissal based on tweeting trial. Don't need this. They don't need to wait a year on a nonviolent misdemeanor or any misdemeanor. They can move at any time where they believe that threshold has been met, where there's been too much of a delay, depending on the factors. So we don't understand why this would be needed.

[Nader Hashim (Chair)]: Yeah, that's a very valid question. I think the, so I'm just speaking from my own perspective and intent with this, which I raised a point when Eric was asked to buy, I'm not sure if you caught it, if you were listening at the time, but my perspective is this, you know, if there are cases lingering, and I don't mean, you know, it's one or two years, I mean cases that are four or five years old, I think that it's a reasonable ask to have the state explain why using the emphasis of justice standard, to explain why that case needs to continue staying on the docket. The point that I raised that I think you know, the essays may not be a fan of is that I don't think that the burden is it should be on the defendant to file the motion and meet the standards for the interest of justice because they are challenging to meet already. It's my opinion that if there is a nonviolent misdemeanor from five years ago, I don't think it's unreasonable to have the state explain why that case, that prosecution must continue and to have the state have the burden proving why in the interest of justice that case needs to take up space on the calendar. And also I just want to add, I certainly don't think that you folks enjoy having the backlog. I fully hear that, but this is one step that I'm trying to take to help address the issue in general for

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Which, understandable, I guess in the scenario that you raised, someone having a misdemeanor of four or five years old, in either scenario, whether it's through this bill or through our current speedy trial practice, the dependent needs to make that initial motion. So that dependent with a four or five year old misdemeanor can remove her dismissal at any point. These factors are going to overhaul the constitutional factors that the court needs to weigh. The defendant in your scenario would make the motion, set the threshold argument that there's been an unreasonable delay, and then the state would need to respond to that and have to go through why this police happened, who were they attributed to defense, to the prosecutor, to the court calendar, whatever it might be, and what the prejudice is. What I didn't see and hear is it doesn't while it lays out additional factors, many of these factors the state would already be addressing in whether or not this case should go forward. Within, even though the Barker factors are only listed as four factors, our case law, when you look at each of those four factors, is quite robust on what it means to meet each factor. At our initial reading of this, we don't see this We already have the burden after the defendant moves. If we don't see this changing that, if we don't see it necessarily making it easier to meet that standard.

[Nader Hashim (Chair)]: So this is perhaps just my own misunderstanding, so my my current understanding is if whichever party files the motion, they have the burden of proving that motion. If this were to if we were to go through markup and make the burden on the state to explain why after two years, a certain case should should not be dismissed, that seems different than having the defense have the burden of explaining why it should be dispensed.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: And that's it might be where one of our issues with the bill as written simply says that the defendant moves no dismissal. Reading that plain language, if the intention is that the defendant just writes one sentence, booze or dismissal based on community trial, we think there's a number of issues there. One that just flies in the absolute face, are the current Keys Law. The defendant does defendant has to at least meet a threshold argument. They don't they don't keep the burden once it's placed, if that makes sense. But they do have to make the initial argument that this time period is prejudicial to them. And here, we don't seem to have to do that at all. So, this bill is currently written, displacing the burden entirely on the state, which when you then factor in the exclusion times, what this will do in practicality is when that one year or two year calendar date comes up, then theoretically you would find about one or two sentences to get this ball rolling. The state would then need to go through the exercise first to even see, is this really a year? Right? Let's go through all the exclusions, all the continuances, did we have a competency exam, everything that was listed out in here. And then if that has been met, then go through the various factors why this is the main interest the state to go forward. I mean, think that on its face is just one unfair that we essentially have to do that entire calendaring work, and then argue for the case. But the unintended consequence is going to be this additional motion practice, these additional hearings that need to be scheduled, and further delays for artisans in general. What we want, we want more court time to address these cases that are falling behind in the backlog, that I believe they're kind to push forward with this. We need the time to try these cases. That's what we need to be looking at, is where we can find the dedicated court time to get these cases in. These cases get overridden by our more serious felony cases, which often have somebody being held, not always, but often. In those cases, they're always jumping the line. So we would just, on a few levels, point out we think, but we do not think this is going to solve the problem that you're trying to solve. The burden that is on the state in our current case law, once the defendant meets that initial burden of saying that the length of time is too much. At the bare minimum, we think that that should be here. We do not think a defendant should be able to write one or two sentences, and then we have hours and hours of work to respond to this in writing in fourteen days to meet the deadlines. The court does not sit without our input. It just looks going to be impractical upon us.

[Philip Baruth (Member)]: Senator Baruth. Thank you. So I hear you saying that you think this will make the backlog in effect worse because it will it will add additional procedures. But clearly, the intent is to reduce the backlog. So, I hear you saying you want more court time and we have hired more judges. We have increased court time probably to the extent we can from the near future. So my question would be, could the bill be amended in some way or changed in some way to maybe have automatic dismissive under certain circumstances or you know, we have contemplated in recent past having cases that meet certain criteria dismissed en masse as a class. Any possibility that we could do those with your group's active help to make this a bill that would more, in your opinion, more clearly target the back of it?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: So just before you came in, or a little bit before, if you'd like, But no, not at this is wonderful because it brings me back to where I started. That is, we believe that there are tools that already exist that we should be utilizing and encouraging the court to utilize. There's administrative processes that we think would, again, address the issue. The first rule was mentioned during Ledge Council's presentation, Rule 48. The courts already have the ability to dismiss cases when they have been submitted for too long. That exists. The prosecution does not bring the defendant to trial in such time as the Supreme Court has advised through administrative order. We have those guidelines from the Supreme Court. The court has the ability to dismiss these cases through Room 48, and this has been done. Judge Bailey did it in 2021, dismissed 300 pieces in Franklin County, did it, sent a long list over to the state's attorney's office. I am considering dismissing these. Gave a window of time. If you have an argument for why they should not be dismissed, I need to hear it. Otherwise, these are gone. And they went. Yeah. So that rule exists, and that ability exists. So again, to create this process to essentially

[Philip Baruth (Member)]: Right.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Make this rule

[Philip Baruth (Member)]: I hear what you're saying, remember we were referring to that case earlier, the dismissal of those 300, but we're prohibited from compelling the judiciary. So I know that the state's attorneys and others have been trying to get judges to do exactly what you're talking about. Clearly, many of them are not. So again, how can we as opposed to just saying, well, there's nothing we can do, how could we write this in such a way that they would be, if not repelled, then strongly encouraged or make it harder for them not to be reexamined in the case of it?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Two things there. One is, and again, they said this before, you're able to join us, speedy trial practice exists. Women can make this motion. The state will have to reply. The court will have to go through the factors that exist. This can be done. Nothing is preventing a dependent with a four or five year old misdemeanor from saying, hey.

[Robert Norris (Vice Chair)]: Right.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: You wanted my speedy child. I didn't get it. You shouldn't go on. And then the court will do its analysis. So then there's

[Philip Baruth (Member)]: But it did not happen, correct?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: But it did not happen. Or if so and that's where if it was happening and then decisions weren't being made properly or something

[Philip Baruth (Member)]: How do we make it happen?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: Well, the training issue, the attorney should be making the motion. Okay. Or we'd like to see examples of defense attorneys making the motion and the string of denials. We're not seeing that. And doesn't behoove anyone to have these cases linger, but if a dependent is just letting time go by and not actively engaging, that's an issue as well.

[Philip Baruth (Member)]: Right. And it's just a little frustrating because the current situation, you're saying defense lawyers should initiate the process or judges should initiate their rule of 48 process. Neither are doing that. And I understand you're speaking for the prosecutors, but, you know, I share the chair's frustration with this desire to put people more to the question and yet make a good argument. This does add hearings and etcetera to be put down there.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: And a few other things occurring just to mention because, again, we are actively

[Nader Hashim (Chair)]: Sorry. I'm sorry. Before we move on, think, first question. Just one. Well

[Robert Norris (Vice Chair)]: Yeah. We're spinning around here somewhat. Despite what we delve into, I understand the intent, Philip, that senator Hashim has and and I support that. I understand your concern on your end. My question was, if this is something that can be done, and and judge mainly did it, Franklin County, and I talked to judge going in tomorrow, and once again, it reports back to staffing. We were staffing to make this happen throughout state of. I was my question, Hugo, is gonna be, are you aware of are your state attorneys telling you how many motions have actually been filed by the defense too? And if so, why not? We got five, six, seven year old cases in it. I would think that my defense attorney would be filing some. I don't care whose responsibility it is, but as the client, don't wanna say what's going on here. Riley, while and hello.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: And and I do not have the exact numbers for you, and I can take a quick I can see what I can find out, and get back to you on that. But that, again, goes to my original question of, you know, what is the problem we're trying to solve? If they're not raising the issue, they're not allowing, again, the law that we have. We have this law. There are many areas of case law that are murky. This is not one of them. We have a lot of case laws, state and federally, that addresses speedy child. I'm happy to look into that.

[Robert Norris (Vice Chair)]: No, I don't think you need to do that. I think I'd go along with what Senator Baruth is saying. Somewhere along the line here, the intent of the bill is good. I think it has to be a convoy someplace so we don't wanna reward one particular agency, but the whole purpose of this is to if if they're not gonna do it on their own, we're gonna help them.

[Nader Hashim (Chair)]: See this hit. Yeah. Just wanted to also add sorry. I didn't mean to interrupt you. No. It's fine. It's fine. I I also wanted to add that, yes, I I do agree there are tools, you know, where these motions can be filed. What I think is missing is a timeline, a cutoff point where it says, okay, yes, people need to be held accountable. There's probable cause, they can be charged by the state, but after a certain point when cases have been lingering for many, many years, I think that it is not unreasonable to then shift the burden and say, Hey, state, why, or state, you need to explain why this case is five years old. And if it really needs to continue, file this motion, and we'll take it from there. That's that's what I'm trying to accomplish with this. You know, I wanted to avoid the automatic dismissals. Hey. I saw that that's that's what they do in Massachusetts with even shorter timelines, I believe, and for both violent and non violent crimes. But, you know, I didn't want the automatic dismissals because I wanted to make sure that the state has the opportunity to present an argument as to why, a certain case has been taking a long time, or if they need additional time or perhaps if there's other charges stacking on. But, yeah, those those are my thoughts. Just wanted

[Philip Baruth (Member)]: to throw that out there. So

[Kim McManus (Department of State's Attorneys and Sheriffs)]: And and again, a team members have said, the intent is understandable. I don't believe it's the impact that, again, this would be unintended consequences that not only don't solve the problem, but exacerbate the backlog problem. I did wanna mention just a few other things happening on the administrative level, because, again, this is an issue that the judiciary doesn't like the backlog. We don't like the backlog. When asked, what about mistakes attorneys? Can we actively, proactively dismiss these cases? And the answer is yes. We need time to be able to do that. I've had conversations with the judiciary about calendaring times when we are not scheduled to be in court. Currently, we have two and a half days when the judges are at judicial college where we are guaranteed that there's no part time other than emergencies, and we have our training during those days. What many of our state's attorneys have raised and asked for is dedicated guaranteed time. There is no for it so that the state's attorneys can do that work of pulling out the list. Our state's attorneys are doing this throughout different counties at different speeds, depending on the time and resources that they have to be able to go through that backlog and look up those older cases. Then we have to file a dismissal for each one. It's not a magic wand. There's work that's involved to do all that, and we need time outside of the courtroom to do that. That's something that we've had in conversation with the judiciary on. Could we all agree on certain dates? Could we and we've encouraged the judiciary about scheduling. Again, we need the court to schedule these cases. We do not control that schedule. In many of our counties, we will ask, we will motion to schedule items to get them on. We cannot control that. So again, we understand where this is coming from. We just don't think it's going to address Mhmm. The issue that.

[Nader Hashim (Chair)]: Any do you have any further testimony?

[Kim McManus (Department of State's Attorneys and Sheriffs)]: No. Not right now. Okay.

[Philip Baruth (Member)]: Let's pass the call.

[Kim McManus (Department of State's Attorneys and Sheriffs)]: You so much.

[Nader Hashim (Chair)]: Committee, any questions before introduction. Questions. No. Okay. We're going And again, when the

[Philip Baruth (Member)]: floor We're going with Floor 1.

[Nader Hashim (Chair)]: Oh, not the floor. We'll have We can

[Philip Baruth (Member)]: early, and then we'll come back. Yeah.