Vermont Legislature SmartTranscripts:

[Senator Nader Hashim (Chair)]: Good morning. We are in senate judiciary. It's January 9. We have the defendant general here list to share their perspective and thoughts on s one seventy eight.

[Matthew Valerio (Vermont Defender General)]: I didn't thank you for having me. You're not one seven. Let me preface this subject of speech trial and where we are with speech trial. Probably every school kid knows, and I'm sure everybody in this room knows somebody charged with a crime has a constitutional right to a stupid tribe. The right already exists. And, you know, as a part of a very fundamental human block of the criminal justice system. Over the years, however, the definition, what adds up to a speedy trial has been eroded to such a degree that effectively in no case that somebody actually has a right to a speedy trial. Even when we were I mean, I go back to the pandemic and the courts effectively closed out with all trials for year period. And at the beginning of it, I I was asked to comment in the in the press about this, you know, what about speedy trial? Like, well, there's nothing in the constitution that says your constitutional rights go away during pandemic. So it must have constitutional right to a speaking trial because the courts are the state and state's not just state's attorneys.

[Senator Nader Hashim (Chair)]: It's Right.

[Matthew Valerio (Vermont Defender General)]: The Department of Health. It's the executive branch. It's and it's us. So I would at the time, I said I I would anticipate that for clients who demand it during pandemic that we would be able to actually have a process. As you might expect, they weren't happening. Motions were filed. It was ended up litigated, and effectively, the results were that none of basically the pandemic excuses us from having to be tried. And I was kinda stunned by that. We basically not only did we suspend trials, we suspended all kinds of constitutional issues during the pandemic. I guess if things get bad enough or or whatever, then we don't have a constitution anymore, relative to certain issues in speed trials, like one of the many things that could go wrong. It's, you know, it's important to what I do. It's fundamental to what we do. But what has kind of happened is the courts have excused away reasons why speedy trials shouldn't happen is that the rate is effectively kind of eroding. Donald's not. The last case that I remember being, you know, fundamentally the serious case that was impacted by speedy trial was the brutal case out of Bennington. At the very beginning of my tenure as defendant generalist, it's probably twenty years ago now. I've been on the job probably, like, twenty fifth year. But this was a client who, for various reasons, had dismissed his either fired his lawyer or had conflicts with the lawyer, the actual ethical conflicts arising from professional responsibility, and had gone through a number of them. And I've been it was a serious case, and I had I I could get him a lawyer, but it was gonna take him, you know, a period of months to be able to get to the case. And ultimately, the Supreme Court said, no. That's a violation of the speech trial rights. Not because of anything that the court didn't get to the case or the prosecutor couldn't get to the case. The irony of this is a state, as you can imagine. But it's because the defense system was unable after by the time that the sixth layer get a lawyer for for the case, which is not usually the way any of this works. And the case basically said, well, the system is the state, and that includes the, the public defense system. And the case was ultimately dismissed. It actually went, went up to the US Supreme Court within that back. US supreme court said there wasn't a speedy trial violation. And then it was reargued at the Vermont supreme court and Vermont supreme court found that it was a speedy trial violation under the Vermont constitution, not under US constitution. So then the US Supreme Court decision to have any applicability of the case. It's fun, guys, doing this on the case. In any event, so I applaud the effort for sure to put some teeth behind what you'd think would have teeth already in an institutional right to a speedy trial. You know, that some of the details, you know, we could just, you know, argue about some of those. But I do think something needs to be done because clients routinely say, you know, I want a speedy trial. And then you'd have to explain them all the reasons why well, you can't file motions to suppress in a speedy trial because situation because those will get counted against you. Time wise, you can't are all of the various things why you can't get a speech trial. Some of them and a bunch of that's actually incorporated legitimately into this into this bill. But then there are lots of other reasons, you know, why cases are not really subject to speech rather. It'd be great to have some actually hard and fast rules or statute that, defines what what these are, so that defendants and both prosecutors and defendants have something that they can. I'm just getting it clear enough. So how do they outside of so, obviously, I went through the bill. And I'm you know, I'm look I've looked at all the provisions. I wanna direct your attention now over to page three, line thirteen, fourteen. Delay result from examination of the defendant is bearing on defendant's mental competency or physical incapacity. The only thing I agree with this. This is fine conceptually, but this is one of those areas that the state in general is falling short on, because it it can sometimes take us not even sometimes, oftentimes take as long as six months from the time an evaluation is ordered for that evaluation.

[Senator Nader Hashim (Chair)]: Can can I just interrupt real quick? When you're saying the state, are you referring to the prosecution of the Department of Mental Health I'm

[Matthew Valerio (Vermont Defender General)]: not talking about the state's attorneys. I'm talking about Department of Mental Health. Want to You know, any of the those that need to provide the evaluations will benefit of the justice system, whether it's mental or physical, you know, traumatic brain injury or, mental illness, issues. But it can take a really long time. And, you know, this is over a period of time with the washing away of the state hospital and the effect that we don't really have at the state hospital at this point and the language experts that are available to provide the initial competency evaluation. Uh-huh. This is a state function that we need to get better at. What ends up happening with these folks, is they end up on conditions of release for months and months or longer, both waiting evaluations, waiting waiting for them to take place, and then to get the actual results of the evaluations. And this boils down to really resource failure on the part of the state. And so, you know, I don't know if the right thing to do is to put a a cap of you know, you gotta get these done in ninety days or a hundred and twenty days or something. But the delay resulting from getting an examination should not be a delay that is attributable to the defendant once it gets beyond a certain point. The unfortunate thing is, and this is, you know, we seen this in a lot of the cases that were often, in with the special docket that was established up there. These folks get labeled as treatment resistant. And really, what they are is people who are unable on their own to access treatment while their case is pending. And I talked about this at length yesterday, house corrections and institutions. But these are people who end up they go to court. They end up on conditions of release. There may be a pending evaluation that's gonna come at some point when somebody figures out when that's gonna be. In the meantime, they start picking up other charges for violation of conditions of release, along the way. And the longer they stay out, the more charges they pick up. This delay to me is not something that really should be attributed. The problems around that should not be attributed to this. As an aside, but related, I I wanted to say that in that docket up in Burlington, one of the things that we would have had similar results no matter how many times he brings somebody to court quickly. But I, even though we didn't get more money, I designated $47,500 for the three month period to hire a company called Therapeutic Works up at Burlington that basically would fill the gap between the court order and the people who in AHS, the Department of Mental Health or whatever provider was up there, who were sitting there, you know, like a catcher waiting for a pitch to come in. And what therapeutic works, they were all psychotherapists. They can do all the same evaluation screenings and that sort of thing that mental health and HS was doing or the Howard Center and the like. But what they would do if there was an order is they would connect the two. So if a client got ordered on a conditional release to go from the court, they would make sure that person got from wherever they live, if they had a place to live, or from the court to Williston to get their evaluation. They also had a downtown place in Burlington so that, they weren't hanging out in the door doorways or or going into stores and annoying people or whatever. And they had a drop in. They you could drop in. You could get soup or coffee or a place to sit where it was warm when it's ten degrees, that sort of thing. So what it was doing is eliminating violations during this period, and it was connecting a specific individual approach with the place where they were supposed to go to be evaluated or serviced. Length in these cases and the right to get their cases resolved quickly is not just about getting it done quickly. It's about preventing other crimes and other violations of conditions of release. So these people who have been labeled as treatment resistant are not always treatment resistant, but they literally can't figure out how do I get from, you know, Cherry Street, but will I stay when I don't have any transportation? I, you know, I might be mentally ill. I might have substance issue. I might have both. I have no transportation. I might not have a place to live. I don't have a job. I don't you know, they got all kinds of things going on where they are just individually or willing, but they are not individually capable of doing what the court ordered. And so this connector, this social worker connector that we we put in place because of this docket being consolidated, prevented a lot of violations during the period of time while it's running. Her point, though, relative to speedy trial is the quicker we can get these things resolved, the less you're gonna have any of that stuff going on because now, in theory, we're going to if we can social work them appropriately after the fact, we're going to get them, a quicker resolution of their case. Now there's also those who are gonna be found not competent, and we and we did that But during during this period of time, the the system did that. I'm not the defendant general's office, so, you know, we did our part. But you are also gonna there's some people who legitimately need trials. They just need to get to trial. And those people got on a trial list, don't know, or any trials during this period of time up in in Chittenden as a result of this docket, but they're at least and I would identify those. And then there are lots and lots of dismissals for because the state realizes they don't have, the evidence that they need to prove their case, which is also another issue, like, in speedy trials. The longer these things drag out, can this is the benefit, even though, clearly, state's attorneys would not like to have you know, I would just I don't like to generalize because there are some might think otherwise. So, you know, deference to them by by by making this generalized statement, which is always a dangerous thing to do. But, generally, state attorneys don't want to dismiss cases. They don't have to. But it's in the state's interest as well to get a case to trial quicker rather than not because the witnesses are around. They haven't disappeared. They haven't changed their mind. They haven't done all the things that witnesses do in cases when you bring a case to trial two and a half years later on a misdemeanor, or a felon for that matter. So there's a benefit to both the state prosecution side and the defense to bring cases to trial or resolution since possible.

[Senator Christopher Mattos (Clerk)]: It's every Matt, thanks. Can I ask you about a specific piece on page two? We had judge zoning and some other witnesses talking about this, the state's attorneys. Prosecutors so it begins by saying that someone can What lining up? I'm on one. Okay. Prosecutor shall respond to a motion filed pursuant subsection within fourteen days. Court may set the matter for a hearing. And it seems to me this is the main action of the bill is to create this opportunity for the case to be dismissed if if it's if it meets all these criteria. The knock on that that the state's attorneys had was that it was going to actually delay things or or make the backlog worse because it increased the number of hearings, etcetera, the amount of paperwork that they're required to do. What's what's your take on on that section? I've

[Matthew Valerio (Vermont Defender General)]: kind of heard this argument before, when we were dealing with motions to for a deferred sentence over the objection of the state's attorneys. Mhmm. The argument was that they were gonna get flooded with defense motions for, deferred sentences over the objection of the state's attorney, which I said at the time, that's not gonna happen because you're only gonna do it in appropriate cases. And my feeling is it's the same thing. You know, if a client demands a speedy trial and then doesn't get it or they're and doesn't fit any of, you know, the criteria that extend things and exclude things, don't apply, you're gonna get a motion. There are a lot of things, even in this bill, that tries to set it up that would mitigate against filing motions for speedy trial, because you do have to do discovery and you do have to file motions to suppress it and the like. Now I know personally, I know there are ways around some of that stuff, that we may well train on. I mean, you can, you don't have to file a pretrial motion for, suppression, for example, based on a illegal search or whatever, you can actually file it at trial and you have the trial and the suppression at the same time. And in fact, even if you lose, say you filed the pretrial, you can renew the exact same motion at the beginning of trial and retry the issue of suppression. But we don't have time for that either. You know what I mean? What they're worried about, there's gonna be all these motions, and we don't have time to respond. We don't have time to file the motions when they're frivolous. We don't have time to file them when they don't fit the other criteria. So I don't think that it is going to be like an overwhelming thing. You know, we can argue about, you know, do you get fourteen days to respond? Do you get thirty? Or do you or some of the, you know, details to make it more palatable, or the, you know, whether the state even has to respond to the, to the motion, they could either just say, you know, we agree or we don't. And then you're gonna have a hearing at some point and you're gonna consider all of these criteria and a judge is going to have to make a finance relative to relative to the medical snowbird and not the state's attorney, except for saying yes or no. The, the bottom line is that, this, you know, as I said at the beginning, this concept of speedy trial that we do in the constitution has been watered down to where it basically doesn't exist except for the most extraordinary circumstances in the system. I said, our clients know that there's a thing for speed and trial, then you have to explain them all the reasons why, Well, you really don't. This would at least give them, you know, say, hey, look, these are the times he can do it. What this is what the statute says. It kind of redefines the issue, rather than us just saying, that's a waste of time because we're and we don't even file dismiss motions to dismiss for speeding trial anymore because it's a waste of time.

[Senator Christopher Mattos (Clerk)]: Yeah. Judge Zumley was also saying that or maybe I'm remembering wrong, but I thought he said that defendants already had the right to file what what this bill seems to give them the right. You know, on page one,

[Matthew Valerio (Vermont Defender General)]: a

[Senator Christopher Mattos (Clerk)]: defendant charged with a nonviolent misdemeanor, nonviolent felon who may move for dismissal if it is not commenced. I don't know the law well enough to know is If it is not commenced within a year. Right. Yeah. Is is that currently? Could they file?

[Matthew Valerio (Vermont Defender General)]: Yeah. Yeah. That's not wrong. Okay. The problem is that the exceptions have swallowed the rule. Yeah. All the reasons why you are going to get it to Smith. Yeah. And and no. He's not wrong. That's the whole it comes down the case. Absolutely. A speedy trial right exists in the constitution. Mhmm. But

[Senator Christopher Mattos (Clerk)]: But is the idea here do you think that this would signal to prosecutors and judges that one and two years are reasonable frameworks that they should be looking for?

[Matthew Valerio (Vermont Defender General)]: Yeah. I think so.

[Senator Nader Hashim (Chair)]: Matt, if I can I'm sorry. Did you have more of a response? Not to that question. The so what what I'm also trying to get at here that I think and hope is different than what we currently have as a remedy is if a motion is filed by the defense, they're not necessarily going through all the interest of justice elements. But when it goes beyond that timeline of the one or two years, then that burden flips to the state and then requires the state to say, alright, here's why we're going to justify in this motion that this case needs to stay off calendar, and hear those reasons why.

[Matthew Valerio (Vermont Defender General)]: Yeah. I I will say that the that could be said better than Bill. I mean, just directly, you know, the state shall have the burden of well, by you know, you might even put a standard, you know, must prove by a preponderance that, you know, the whatever the criteria you wanna put are, you know, just to be clear about that. I always I I've always been kind of by the whole speedy trial issue because I've literally never gotten anywhere with it ever. Didn't matter how old the case was. I think that, you know, we do have to and I've made some suggestions to some legislators about you know, we have people who charge for misdemeanors where the maximum sentence is two years. They've been on conditions of release, haven't violated them. They've been on and they're waiting a trial and spent two and a half years. They've effectively been on probation for longer than they would have been if they just pleaded the case day one, subject to criminal liability for violating these conditions in release. And still you can't get anywhere with speed trial. You know? So, I've I've often thought that, you know, if you're on conditions in release, and I've said this for two years for a misdemeanor that has a two year max, that's what the problem is. So They should just go away any you know, we've already gotten anything you're gonna get, like, sure. You know, very few misdemeanor cases are you're gonna get jailed on, except for the ones that have mandatory jail. Keep trying to get rid of those. You know? The DUI keeps changing so that, you know, it's gonna be between certain things about, you know, after, you know, whatever whatever it ends up being. And, honestly, I I used to hundreds and hundreds of DUIs in my private practice, so a while ago now. But it's changed so many times. Don't even now what the what the how many hours it is that you're supposed to send because nobody really wants anybody to go to jail on. We don't wanna put those people in jail because we got more serious cases to go to jail. In any event, this might help with some of that, at least sends the message that the legislature has an intent that speedy trial means something. I wanted to, if you don't mind, you have

[Senator Nader Hashim (Chair)]: One moment, Sarah. Go ahead, ahead.

[Senator Tanya Vyhovsky (Member)]: Yeah, no, I wanted to circle back to that because I've actually suggested this a couple times in this committee, the idea that you're pointing to of cases that have lingered longer than the maximum sentence, particularly nonviolent cases, being dismissed. And I wonder, would that be legislation that we would need to work on, or would that be something that courts could just do? Or I guess the state's attorney?

[Matthew Valerio (Vermont Defender General)]: I've I've always thought that this is part of what happened up in Franklin County shortly after the pandemic, and they got rid of hundreds of cases with the agreement of the state's attorney and the defense up there, cases just like this. Other state attorneys are like, we're not doing that. So that does it it is doable by agreement, clearly. I've always believed the court could do it under rule 48, but judges are reluctant to dismiss hundreds of cases that fall under this category, because they don't want the heat. I don't I don't necessarily blame them. If the legislature did something that said that, you know, if you've been on conditions of release without a violation for more than the length of the sentence, then you're- Make sure they be dismissed. You could do that. Okay. That that's a it's like a speeding trial. It's akin to it, but it's not the same. Mhmm. It does give incentive to defendants to panic in there and and not violate. You know, they're the ones that we have difficulty with are significant numbers, but not I don't even want to say like the majority. Everybody thinks that everybody in the criminal justice system needs treatment. That's not true. They don't. Sometimes they need to just be left alone so they can get past whatever they did or didn't do, hence administer it with probation. In any event, and some people don't even need to be on probation. They just need to be, you know, looked at all the time. In any event, this would give incentive for everybody to get cases resolved before the two years. And it could clean up some amount of the backlog. I don't wanna pretend that it would do all of it because they're going to be and you're gonna have people who you know, they have a felony retail theft or a felony of lawful trespass or unlawful mischief, and then they'll have eight misdemeanors. And those people under that scenario, because there are a couple of felonies, even though the difference between the felony and the misdemeanor is, you know, one person had a $700 broken window, the other person had a $9.00 $1 broken window, one's a misdemeanor and one's a felony. You know? I mean, we could always classify certain nonviolent felonies that are based on value or that kind of thing. That's part of the group too. But there are a lot of people who have what it's all general scheme of things, but minor felonies that, could be included in something like that. And I'm just thinking about, like, how do we get out of this backlog issue even though the court like, in the last quarter, we made a lot of progress on the backlog. During that same quarter, we saw, like, a 30 something. It was, a 39% increase in caseload in Chittenden County alone. Statewide, it was over 15%. How do you those aren't in the backlog. Those are new cases. So how do we, like you know, they're going to be a backlog. It's just we aren't there yet with them because they aren't old enough. So, you know, I'd like to get us back to where we were in the few years before the pandemic. Do

[Senator Tanya Vyhovsky (Member)]: you have a sense of this may be a better question for the judiciary, and I think we're probably gonna get this information, but do you have a sense of how much of the backlog doing something like that dismissal protocol we just talked about would clear?

[Matthew Valerio (Vermont Defender General)]: Well, I can definitely find it. I have an estimation because I've looked at this really since the pandemic dragged things out. Like, thought a lot of us that even at the beginning were like, oh, this is gonna be a month that we'll be out of this. Right? And then it was six months. Once we started going over a year, I started looking at this periodically. And the amount that is, like, in the backlog itself, I think we're probably talking 20%.

[Senator Tanya Vyhovsky (Member)]: That's pretty significant.

[Matthew Valerio (Vermont Defender General)]: Well, yeah, I think we do 22,000 cases a year, and that includes all the felonies. But, there's a lot of misdemeanors. It would it would do a chunk of stuff. You know? Some counties, it is all charging part of it's charging decisions. You know? And I I and and so some charge a lot of misdemeanors. And, you know, I've heard that the, you know, the response might be that where the prosecution has a choice to choose a misdemeanor or a felony. If something like this went through, they would just choose the charge felonies and then settle for misdemeanors of mostly charging misdemeanors. Know? Lawyers are a pain in the butt. We can figure out ways around everything. I I literally remember the first time I and I wasn't defender general at the time, but I testified in front of the the CS here. Call me out. Don't know what the bill was. And I remember saying at the the end of my testimony, it was that, you know, I wasn't keen on whatever was going on, but I I said that, even if you pass this, I've kind of already figured out a way around whatever you're going to do. And he and he he laughed as he as he would, usually at me, And and just said, you damn lawyers. Always, you know, always screwed with everything we're we're trying to do. And, like, yeah, well, you know, it comes with the territory, I guess. And but that's you know, I I could see if I'm a prosecutor, how I might, if I didn't like the way this is going, and how I might respond to it, and that wouldn't be a good thing either. So.

[Senator Nader Hashim (Chair)]: I do, just something you mentioned, I have an Excel spreadsheet that I received in December when I first started this bill that can answer a lot of your questions.

[Matthew Valerio (Vermont Defender General)]: Is that for the entire issue?

[Senator Nader Hashim (Chair)]: Yes. So you can sort through what cases are inactive due to and take those out, but I'll share it when it's, useful for this video. Another pleasure.

[Senator Tanya Vyhovsky (Member)]: I did, and that was, you know, to your point that, you know, if something like that dismissal protocol were to go into effect, might charge with felonies. If we included the sort of nonviolent Yes. Some. Felonies, wouldn't that sort of account for that?

[Matthew Valerio (Vermont Defender General)]: If you if you included it might it might be some. For sure. Yeah. You know, the the thing about there's a lot of, like, minor assault looking type stuff. Things can be anything from disorderly conduct to aggravated assault in the exact same set of facts, and it's just how you describe it. Right? You know, it could be and sometimes it's mutual affray. Sometimes it's, you know, simple assault. Sometimes, you know, it's just it's how you make the affidavit, how you decide to present. And and you can get by a probable cause pretty easy, get it out again. And that's where the leverage comes. And guess all I'm saying is, like, some stuff that is violent is not really violent. And and some stuff that looks like a felony isn't. There's also stuff that is misdemeanor, but it's much more serious than it appears on paper. Know, we defense lawyers depend on that in the resolution of cases. And, know, to be perfectly honest, we are always I always like to say we're ready to try cases when they come up, but nobody really wants to try a case if they can avoid it. It's a lot of time and effort, money.

[Senator Nader Hashim (Chair)]: Matt, there's two questions. One, going back to something you had mentioned a few minutes ago, you had mentioned that this could create an incentive for everybody to try and resolve a case for the one to two year timeline. What would why why would it create an incentive for the defense to resolve before the one or two year timeline rather than just trying to wait out the clock?

[Matthew Valerio (Vermont Defender General)]: One of the I believe, one of the very interesting misconceptions in the world is defense. And I hear this, You know, I've heard the governor's council talk about this, is that defense just loves to delay everything. Coming from someone who's never a defense lawyer, I guess I could see point of view of Johnson is saying that. It's totally the opposite. Defense lawyers wanna resolve cases as quickly as they possibly can under almost every circumstance because we got a 100 other cases that they have to deal with, get this sort of off by play. There is almost never an incentive to delay cases for years. It it doesn't make any sense from a case management or from a business management standpoint. You know, one of the hard things now about doing, like, the video and regional arraignments that we do, we can't resolve any cases at arraignment. But and, you know, when when when I was first DG, I would go around the state. I I spent a I'm I'm from the Raleigh County area. So I went into the Raleigh office and I went to Arraignment Day. And we were able to resolve 50% of the cases that came in that Arraignment because we were physically meeting with the clients, talking with them, and we just let the court know, yeah, we got a deal. And, let's do the arraignments, we'll have this guy wait around, and then we'll resolve it. So if he had 10 people in an arraignment, we might resolve five of the cases before that doesn't happen now because we don't you never see the client. You don't know who they are. You don't get to talk to them, and and the like. So really the incentive, just as a case management standpoint, is always to resolve the case if the client wants to resolve the case. And some of them, that's all they really wanna do. It's just, we don't have the infrastructure anymore to do that because the clients, the ones who are lodging, they don't come to they don't they're not transported anymore. They don't come to court. So you never beat them until ninety days after the arraignment. Then you don't know who they are or where they live or, you know, any of that stuff because you never get in a meeting with them. But, you know, one of the things that would resolve some of the speedy trial issues, backlog issues, and the like, if we'd actually had clients come in the court where we could resolve the case that they need. You know? But I don't think that I don't think that purposeful delay is a general strategy. Number one, that is employed. And number two, that works even if you try.

[Senator Nader Hashim (Chair)]: So It's also against the rules of professional conduct.

[Matthew Valerio (Vermont Defender General)]: It's it's it's it's against, like, the very first rule. You know? By the way, the rules don't they used to say that you have to zealously represent your right? They don't say zealous. It now says expeditious. You know? And then in subsumed in the other rules and things about, you know, it's they don't use zealous in the second quarter because it led the VA be taken. But that's it's not what the rules say. So, you know, it hey. Our new song leaders maybe think that's a good way to go. Maybe they do. I don't think they're too bright. If that's what they think and if since it's not good, it's

[Senator Nader Hashim (Chair)]: not good business, not good process. The other, second question I had for you was, regarding the definition of violent. I figured this might be an issue, because some things that are violent may well, I'll just leave it there for that. But do you have any suggestions as to how we can further clarify or define what a violent offense is, in this statute?

[Matthew Valerio (Vermont Defender General)]: If if there are ones that you wanna, we wouldn't specifically just listen. You know? Just listen. It's the only it's the only way rather than trying to figure out what's filed for purposes of speedy trial and this statute. Now speedy trial is still gonna exist for everything in theory. I mean, you could get a murder case dismissed during speedy trial violations, potentially, in theory. And and that, you know, that really was gonna be one of my suggestions is to add to the statutes, you know, that was in everything here. This doesn't advocate any constitutional rights to speak to trial that preexisted these specific requirements in statute. I would add something like that. But if there's a list of crimes that you have in mind that you wanna be subject to this particular statute, then listen. Otherwise, we're gonna be arguing at the Supreme Court about what they meant by violent or nonviolent. You know? I had a couple of had a couple of other little things here that I wanted to just bring up.

[Senator Nader Hashim (Chair)]: That, thank you, maybe any other questions?

[Matthew Valerio (Vermont Defender General)]: I do. But maybe interest on.

[Senator Robert Norris (Vice Chair)]: I don't get to Floor 1130 here. So I got a

[Matthew Valerio (Vermont Defender General)]: couple of questions. So to my understanding, there

[Senator Robert Norris (Vice Chair)]: is no definition of a a speedy trial in the long course. I like it.

[Matthew Valerio (Vermont Defender General)]: It's all been defined by various individual cases. And over a period of time, it's effectively been watered down the next. The so, no, there would have been. Is there? Yeah. I'll get you the 30 cases that that that define it. So I'm sorry. Go ahead. No. Go ahead.

[Senator Robert Norris (Vice Chair)]: You had mentioned just for clear clarity that someone could be out on conditions of release for up to two years on on a misdemeanor that only carries the sentence of up to two years. Yeah. But did I miss hearing you when

[Matthew Valerio (Vermont Defender General)]: you said that also someone could be out on probation? No. All I'm saying is they couldn't even be on under our statutes. You couldn't go out and list very different, very specific types of cases, but you can't be on probation longer than two years. What if you plan on day one and have the your conditions are the same on probation as they were on if that conditions are at least, you know, stay away from so and so or do whatever. You you you can't get on probation. You can be on condition of the briefs longer than you can be on probation. You could be in you know? I mean, it's better obviously not to be in jail, but you're essentially serving time of, you know, on on the conditions of release that much longer than you would if you you know, there are five, six, seven year old misdemeanors that that hang out out there doesn't think they

[Senator Robert Norris (Vice Chair)]: have a problem. And and I guess my my third final question, and I just love the thing you wanna go over is, I'm sure you're familiar. Senator Hashim and I sit on the legislative justice oversight committee, and we haven't got the results back yet on this pilot three b project, which I'm sure

[Matthew Valerio (Vermont Defender General)]: you must be involved in. That's what I was just talking about. We're looking forward to getting the data from that, see

[Senator Robert Norris (Vice Chair)]: if maybe other candidates could institute the same thing. Because from what I hear in early reports are that's addressing some of the backlog. I see cases of five and more cases in the county.

[Matthew Valerio (Vermont Defender General)]: So I'm just curious. There are stats that, Jay Johnson brought to corrections institutions. There's a PowerPoint that's available. It gives you how many cases were handled, how many were disposed, how many were, mental health cases, how many were dismissed, all of that stuff there's down on, none of which is surprising to me because when you focus a bunch of new resources at a particular docket, you're gonna get results from the where we focus the resources on. When the resources go away, you go back to normal. So if

[Senator Robert Norris (Vice Chair)]: it's Priminarily criminarily. Yeah. Does it appear that it is working?

[Matthew Valerio (Vermont Defender General)]: Shouldn't count again. Chittenden County. Okay. I think I honestly and I said this yesterday when I testified there. Apparently, didn't wanna wait around here for me until they read the article. But I'm not sure that it works in any other county. There's all the treatment resources you need, or at least the most that there are in Chittenden County. There's the lawyers in a compact space. There's a whole you know, we have 12 lawyers in the staff office there for the public defenders. So if you're gonna if I wanna designate one or two to handle a particular docket, I can do it. If I, you know, go to if it's, you know, Lemoyle County, I only have two lawyers. If it's Addison County, I got one. You know, the other ones some of the other ones have four lawyers or five lawyers or whatever, and you can't take 20% of your staff out of the regular rotation to focus on the misdemeanor docket when they are loaded up with with everything else, and the counties don't have the treatment resources. So there's it is the unique kind of, economies of of the scale of Chittenden County that allow that to be successful. It does show, however, that when devote specific resources to a specific problem like this, you do actually get results. Those things add resources to be more soft. It's a good thing. And I don't say that mockingly, but it's just, you know, I didn't expect it to be an abject failure by any stretch. I was wanting to get things done. I I let me just tell you a couple little things here just because I know that so on page four and this is. Yeah. It's on page four. It's line seven. Any period of delay is open to the absence or availability of the defendant, that's fine, or an essential witness. I think it would say or an essential defense witness. The absence of a state witness is one of the key reasons case study dismissed as it is. Witnesses absent themselves for various reasons, complaining witnesses recant. Witnesses are concerned about prior truthfulness of statements and that they disappear. Some just don't want the case to go forward. So maybe it's better said that the delay should not be counted if it is the result of an absent or unavailable defense witness, that would appropriately attribute the delay to the defense. And, you know, that that made sense if it it maybe you're it was written to try to get it that, but it just didn't say it. So that was one of kind of the technical things. The next thing I wanted to talk about is, same page, line 16 sub four. This sort of implicates statute of limitations, issues, So if a complaint is dismissed by the prosecution and subsequently a charge is filed with the same or related events, any period of delay from the day of the charge was dismissed to the day, that I was understanding that to be that that delay would be would be attributed that that's not not delay that you could attribute to the state. One of the things I did, I could see a potential tactic of saying, oh, now we're eighteen months into this. I'll just dismiss the case without prejudice. And then, you know, a year later, I'll bring him back. And now we started to clock over again. I don't think that's think it's, it's one of those things where don't don't put it in the hands of the state to be able to restart the clock and by dismissing a case without precedence. This was written a little bit to me, it was a little bit confusing. Maybe it's a wordsmith that could shoot as much as anything. I you know, there's also it can implicate statute limitations issues. You know, when does the you you know, how what's going you know, this one's a little bit, first, a little confusing, but it also allows more kind of manipulation of the kind of deal. I don't know that anybody's gonna sit around thinking about some two year misdemeanor somewhere and go, know, usually once it's dismissed without prejudice, nobody's thinking about that again. Anyway, we got, you know, a thousand other cases to deal with. So but this this little area was something I was had concern over. I just wanna make sure there's nothing else. I don't think there was anything else in particular. We've got a

[Senator Nader Hashim (Chair)]: couple of minutes left. I did have one more question for you. One of the issues that was raised by the state had to do with the workload that would be created on them, and mention in defense being able to file a few sentence motions, and then the state having to file significantly more substantial motion. And I'm trying to think of a way to make it a little more balanced. And one of the components that I'm thinking of is an analysis of any delays that have happened being the responsibility of defense to lay out to show, you know, their initial motion that such and such incidents happen where we filed motion to continue. Here's why it shouldn't restart the clock, or whatever the analysis may be. Do you have any thoughts on on that issue?

[Matthew Valerio (Vermont Defender General)]: Could be one way to do it. Another way I would stick it out is to do like you do in civil suspension for, DUIs where defense has to identify the issues. I mean, it's it's almost like a checkbox. So you can say, like, and if you haven't raised the issue that gives rise by the rise to the to the speeding trial violation, then you the effective fee for purposes of that motion. It doesn't mean, like, down the road. And, again, it's not withstanding any other constitutional rights to speak at trial. And this is where some really deep in the weeds for, like, the legislature, but I think for some lawyers. The interplanning people of 48 and speedy trial did not speedy trial is a different thing than rule 48, but they look at very similar criteria. So someone could be disqualified under from speedy trial dismissal, but you might get a 48 b dismissal in the interest of justice, case being de minimis, and other factors that in the interest of justice would require that the the case being dismissed. For me, for example, senator Mattosky, that is, like, the area where it filed a court could, on motion, dismiss cases where a case has been on for two years on conditions of reasonable violations. So you have a a misdemeanor or some lower end case that is, in the general scheme of things, de minimis, and the person's been on traditions with no violations for longer than their sentence would be, the interest of justice may require that case be dismissed. There's been some progress in the particular judges and particular counties about that, but it hasn't been wide. But I think the rule exists, and I do you agree with me that that's a potential area where I mean, I don't know. I your lawyer. But

[Senator Nader Hashim (Chair)]: For, like, five minutes here. You've got more knowledge. Yeah.

[Matthew Valerio (Vermont Defender General)]: Well, all that needed is I have forty years of forgetting stuff. But the the the bottom line is that there is this this interplay between the two. So all of these tools exist. We're just trying to we're just still trying to hone in so that these things that we know exist have some meaningful bite behind them again. Okay. Last question because we're gonna be we

[Senator Nader Hashim (Chair)]: got the floor in a couple of minutes.

[Senator Tanya Vyhovsky (Member)]: It sounds like too that we're looking at something like this as trying to apply them more universally and thus more justly. Do you feel like there would be more geographic justice with more of a direction of you shall use these tools?

[Matthew Valerio (Vermont Defender General)]: Well, clearly, it will make it so that like I said, there are particular judges who have interest in these issues. So if you're in the you happen to be in that county and you file and this judge is there and you know that and you're gonna get interested. And then there are other judges who aren't. I mean, most of the judges now are, like, as prosecutors, so they aren't looking at things the same way. Oddly enough, some of the ones who are the as prosecutors are the ones who look at these very carefully. I mean, you can't I can't generalize. You know? Mhmm. But it would clearly set a legislative intent and standard where they would have to work to get around it as opposed to, now rely very easily just on, the general idea that things aren't gonna get dismissed no matter how long they sit there. Well, thank you for coming in. This was very helpful. Yeah.

[Senator Nader Hashim (Chair)]: No problem. Got some potential ideas to change this up a little bit, and it's the beginning of the talk.

[Matthew Valerio (Vermont Defender General)]: Appreciate it. Thank you, Tim.

[Senator Nader Hashim (Chair)]: Alright. We can we can go on.