Vermont Legislature SmartTranscripts:

[Sen. Nader Hashim (Chair)]: We're live. Good morning. It's February 12 in senate judiciary. I'm taking up s one eighty three with a small change, and we're going to discuss that change and get life counsel here with us. Gloria, it's all yours.

[Michelle Childs (Office of Legislative Counsel)]: Good morning. So for the record, Michelle Childs, office of legislative counsel, and we are taking a look at a committee amendment. It's draft 1.1 dated February 10 at 11:12AM. And it's just an individual instance of amendment. I could do a strikeout but the changes are so small it seems as though it would be a little better than having to reproduce the seven pages but it's your choice. And so the one change was one that was recommended by the attorney general's office and they testified too. And that is with regard to, if you look at the bill as introduced on page two, subsection B at the bottom of the page, where it talks about this issue that y'all have been discussing around the person entering the contract or agreements and requirement that the person has the intent to defraud at that time, the AG's office brought up issue of, well, what if there's a change order? So they enter into the original and then they say, oh, now we're gonna do a little something different to the bathroom than what we originally contracted for. And so this just accommodates that so that it would include those so that the defendant essentially couldn't say, well, I entered in the contract at this point, we did a change order that kind of negates the issue that they can't they can't use that as a defense, that they change the order. So

[Sen. Nader Hashim (Chair)]: would a change order still technically be a contract?

[Michelle Childs (Office of Legislative Counsel)]: Yes. Yep. It's just saying that even if you have the whether it's the initial one or you change the conditions

[Sen. Nader Hashim (Chair)]: Mhmm.

[Michelle Childs (Office of Legislative Counsel)]: Then it's the intent of the fraud at

[Sen. Nader Hashim (Chair)]: that time. And it would be okay. So it would be the intent to the fraud at the time of entering into the new contract. Correct. That this would okay.

[Michelle Childs (Office of Legislative Counsel)]: Yeah. So it could be that maybe there wasn't an attempt to defraud originally, then there's some changes, and and they would go from

[Hon. Thomas A. Zonay (Chief Superior Judge)]: that point. That's right.

[Sen. Robert Norris (Vice Chair)]: Access lines eighteen and nineteen, Michelle?

[Michelle Childs (Office of Legislative Counsel)]: Correct.

[Sen. Robert Norris (Vice Chair)]: Striking out contract for agreement and inserting contract or change order. Mhmm.

[Sen. Nader Hashim (Chair)]: So I guess I'm this probably would have been a question for Todd, but if a change order is a contract, why would and a new contract is being entered into a month or a year later, why wouldn't

[Michelle Childs (Office of Legislative Counsel)]: it Just apply with the current language.

[Sen. Nader Hashim (Chair)]: Yeah.

[Michelle Childs (Office of Legislative Counsel)]: Right. I see your point, and I think I don't wanna speak for them, but my I suspect that it's to preclude any argument, you know, to kinda clarify that it would that that would be included so that somebody couldn't make the argument under just having the existing language with the contract or agreement to to make that argument. Okay. So I think it's probably just one for clarity. Yeah. Any

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: questions or comments?

[Michelle Childs (Office of Legislative Counsel)]: So I'm just noticing that I just changed it on the first one. That was their recommendation, but I think you should probably you know, so, like, the first part of b is that if you enter into these things for a thousand dollars or more, and then the second piece of it is for aggregated for $3,500. So So I'm wondering if it should if we should just add that there as well.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Maybe

[Michelle Childs (Office of Legislative Counsel)]: it's not needed. Maybe we leave it there, and if you guys build it out, if I'll check with the AG's office if they think it should

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: also Yeah. Because the the latter is is plural Right. Versus

[Michelle Childs (Office of Legislative Counsel)]: just trying to think about how that would work if you have a variety of clients. Right? And so it seems as though it should be the same. I don't know why it would be different. So I could change it now Okay. If you wanted to and add that in there.

[Sen. Nader Hashim (Chair)]: How is the committee feeling about the amendment? Or is there any opposition?

[Sen. Robert Norris (Vice Chair)]: I don't have a problem with it. So what are you deleting? Or is it starting for the 2,500 or more? So

[Michelle Childs (Office of Legislative Counsel)]: it would be the same kind of thing where you would let's say, so if you're looking at line 19 with an owner for home improvement or lane improvement, we're into several contracts, and then it would just be kind of the a repetition of what the amendment says there. So you'd be striking out

[Sen. Robert Norris (Vice Chair)]: 2,500?

[Michelle Childs (Office of Legislative Counsel)]: The contracts or agreements and then putting in contracts, agreements, or change orders. Okay. And I can do that this morning and then just send it there. So if you wanna vote for it or or I can send you the language send send the language to Emory and then you can just vote later this morning.

[Sen. Nader Hashim (Chair)]: Yeah. Think if we'll vote later this morning. Okay. Senator Mattos gets here.

[Michelle Childs (Office of Legislative Counsel)]: And I'll reach out to Todd and just double check with

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: him. Okay.

[Sen. Nader Hashim (Chair)]: Great. Okay.

[Sen. Robert Norris (Vice Chair)]: And does the amount remain the same or I'm sorry. Vote for your question. Does the amount remain the same on page 2,500?

[Michelle Childs (Office of Legislative Counsel)]: Well, that's your choice.

[Sen. Robert Norris (Vice Chair)]: I was I'm asking

[Michelle Childs (Office of Legislative Counsel)]: this. But I'm

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: not thousand on

[Sen. Nader Hashim (Chair)]: the other page. Yeah. She's not changing that.

[Michelle Childs (Office of Legislative Counsel)]: Not changing that. Alright.

[Sen. Robert Norris (Vice Chair)]: Just contract agreement

[Michelle Childs (Office of Legislative Counsel)]: for Right so the first one is like if you have one client and it's got to be at least a thousand dollars but for the other thing that's under existing law is if you had maybe three or four clients and they have lower amounts but in the aggregate, a total of $2,500 or more. So have a question about that and then a broader question. Do you so and you may not really answer. You might not have the right of attorney, but years back, we passed a contractor registry, and that had a monetary amount associated with it, I believe. It had to be on the registry if you were doing x number. Do you have any idea what that amount is? Is it in the bill? Yes. It's in the existing law. Perfect. For the registry, it's not I think it's it's tagged to if you have a conviction then you go on the registry? No so contractors had to register

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Regardless. Yeah. Like, just like

[Michelle Childs (Office of Legislative Counsel)]: a contractor registry, not like if you did a bad thing registering. I'm sorry. Would not do that right. Jill Sewell would be the right attorney. I can ask. Okay. Yeah. Let me reach out

[Hon. Thomas A. Zonay (Chief Superior Judge)]: to him.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: I remember the

[Sen. Robert Norris (Vice Chair)]: bill she referred I don't know the exact language to it. Yes.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: They created a contract registry.

[Michelle Childs (Office of Legislative Counsel)]: But if there was a monetary amount, like, if you were working below that amount, you didn't need to be on it. And I'm wonder I'm just wondering what that monetary amount is, and the reason I'm asking is because I wonder if it makes logical sense to align the two amounts. Okay. I'll find out for you. And then my broader question that's not about this amendment or this particular issue is if we ever heard again from the Department of State's Attorneys and Sheriffs and the AG about whether or not it would streamline and speed up the process to move all of this into the sort of consumer protection part of the AG's office. I don't remember, but I also admittedly, last week, my brain was pretty fuzzy.

[Sen. Robert Norris (Vice Chair)]: So my question there, and

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: I think we discussed this was,

[Sen. Robert Norris (Vice Chair)]: these would go to the state attorney's offices to begin with them. Would that just delay the process of saying, oh, we will handle this. We won't handle this. We'll go to the AG's office. And if it goes to the AG's office, will it be criminal or civil? It has to be this one's we're turning it back to criminal, obviously. They prosecute

[Michelle Childs (Office of Legislative Counsel)]: as This is the criminal statute. The AG has the registry when you've been convicted. Mhmm. I was just looking in the what you're talking about is that con residential contractors have to register with OPR if they contract for projects totaling $10,000 or more. That's a pretty high bar. Right. So that's I don't think I want to raise that. So that's totally separate from the AG when there's a registry with somebody and where you have to essentially kind of post a security if you've been convicted and they want to make sure that you can make the client whole in case there's a problem.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: I know.

[Michelle Childs (Office of Legislative Counsel)]: And then the issue of you know how it's decided between the AG's office and the state's attorney who's going to take the case. Mean that would be something that you would ask them. My understanding is that the eight g's office does not prosecute these cases. They have well, you would probably wanna talk to them. Yeah. Just when I think about streamlining the process, it logically makes sense to me, though I know our system isn't always logical that having it clear that it just goes to the AG's office would especially, you know, with the backlogs and having no back and forth who's gonna do it. To me, that would make it go faster, But I don't know.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Another simple one. Well,

[Michelle Childs (Office of Legislative Counsel)]: I mean, I think that's part of your larger, you know, discussion around who takes which cases. Right? And I don't know whether or not if the AG was gonna do it. You know, their criminal division is, I think, only like five or six attorneys. And so they work selectively on, you know, like the the ICAP stop, the Internet, you know, crimes against children. They do some of the things where there's conflicts in a particular county, but I'm sure you could have Todd in here to talk to you more about those things. You know if you had if you had it with the AG's office it's still gonna have to be filed in whatever county that the offense occurred in. So this was probably a question from one of our witnesses that is in later on a different bill, but do you have any sense of how many these of these cases there are in a year? I mean, are there 10? Are there a thousand? Again, I think you probably wanna maybe check with Kim McManus on that because I think that the state's attorneys are the ones who are primarily prosecuting those, but I think it's substantially higher than that. Okay. I feel like I, at some point, had heard that there were, you know, dozens of current pending cases. So yeah. Because I would just imagine given the backlogs that these would probably not in in the attorneys triage would not be the ones they do first. So they probably sit for quite a while currently. But I guess that that's why I sort of had the broader question of, you know, did we ever get the folks needed in to answer those questions? Sounds like we did not.

[Sen. Nader Hashim (Chair)]: We did. If you have an amendment and witnesses you wanna bring in then let us know. Okay. Do you have an amendment that you wanna make the book?

[Michelle Childs (Office of Legislative Counsel)]: I mean, not prepared, but I can certainly get something. Okay. So we won't vote on it

[Sen. Nader Hashim (Chair)]: today then. Please let let your council know what you'd like to change and what witnesses you want back in or whatever you wanna change. And then we can bring it back up either tomorrow or next week.

[Michelle Childs (Office of Legislative Counsel)]: Okay. I will make the change to the aggregate piece and I'll send that amendment to to Emory to share with you guys so you'll have that and then whenever it comes back up I'll be joining you. Thank you.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: That's great. You. Okay.

[Sen. Robert Norris (Vice Chair)]: That's kinda.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Metastatic size. It's all over the corner. Don't worry.

[Sen. Robert Norris (Vice Chair)]: I can't find you, Tanya. There you go. Alright.

[Sen. Nader Hashim (Chair)]: So we're switching gears to s one ninety three. We have Jared Bennington, state's attorneys here with us in lieu of Kim, I'm assuming. Right? That's fine. Okay. Great. So if you wanna join us, we can get started a bit earlier.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Is there a safer place to plug in my laptop or My apologies, everybody.

[Sen. Robert Norris (Vice Chair)]: Good morning. And

[Sen. Nader Hashim (Chair)]: you needed a link for In iMail. Right there? Yes. In iMail.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Let me know if you need my email address. I assume visit at Yes. It is. Alright. But I see on the on the schedule, I'm My name's a little bit misspelled, it's j a r e d dot b I a n c h I. Okay.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: I guess,

[Sen. Robert Norris (Vice Chair)]: I mean, long story short, she knows her. Mhmm. That's the question.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Is that okay for everybody?

[Sen. Nader Hashim (Chair)]: Yep. That that works. And just for the record, introduce yourself and then

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: forward is all you And good morning, mister chairman, senators. I appreciate giving you the time to talk to you today. My name is Jared Bianchi. I am a deputy state attorney in Bennington County Here testifying for the state's attorneys and sheriff about s one ninety three. Just a little bit of background. So so as to explain what I'm doing here instead of getting I'm currently a prosecutor in Bennington County. My caseload does include serious felonies and serious felonies with competency or sanity issues where they present. Prior to my present role in Bennington County, I spent more than a decade with the attorney general's office representing the agency of human services and all of its constituent departments in administrative litigation and in state and federal trial and appellate courts. So I've been involved in litigating these issues in various capacities for the entirety of my career. In that role, I was also previously responsible for all act two forty eight public guardianship matters. And I've also served on various legislative and judiciary study committees touching on competency, sanity, and the forensic process. So the first thing I wanted to touch on is just the need for some kind of forensic system of care. I And sometimes we almost get used to seeing the headlines, but here are just a sampling of stories from around the state on a more recent basis. This issue, competency and sanity arise in every single county in the state. They are the most serious cases. They require the most serious attention. And although the numbers themselves are small, the impact is enormous on victims, on defendants, on prosecutors, defense, attorney's offices. I'll note that the state's attorney in every county and the sheriffs and every county support this bill. So just to clarify around some some concepts as we're talking here. Competency and the quote there will speak for itself, but competency has to do with the defendant's ability in a given moment to engage with the trial process, to talk with his attorney, his or her attorney, to aid in their own defense. Whereas sanity is something that attaches at the time the offense occurs. It's whether or not the person was insane at the time they did the act that they

[Hon. Thomas A. Zonay (Chief Superior Judge)]: are alleged to have done.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: So they are related but very distinct concepts, and the process that attends to each of them, one pretrial, one post trial, are very different.

[Sen. Robert Norris (Vice Chair)]: Senator Norris? Yeah. If you could just back up. This just strikes me. A defendant may be sane at the time of the offense, but a competent to stay in trial. I understand that. Or he may be or she may be competent to stay in trial, but insane at the time of the offense. Do you have a what does that mean? So

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: The second portion of it. The the the the really standard example of that is, you know, a person might be experiencing a mental health crisis at the time that they engage in a particular offense. However, whatever has brought that on has been treated in the meantime. And so while they may have been insane at the time they committed the crime, they are now stabilized such that they can engage in the trial process. Oh, so they're now stable. Okay. Yep. There's also other you know, to give you an example on on the other side of things, you know, a person can never have had any sort of mental health crisis and can, you know, on the second day of trial, fall and hit their head on the on the steps. And if they have some sort of brain injury for however long they need to deal with that, they would then be incompetent. It can arise at any time and it

[Sen. Robert Norris (Vice Chair)]: can go away. Okay. Thank you.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Not guilty by reason of insanity. There's a statute that requires this to be done by a jury. I've got here this block quote at the top. That's the model jury instructions on the insanity defense. And what I really want the committee to notice about this is that before a jury ever considers an insanity verdict, the unanimous jury must first find that the state has proven all of the elements of the crime charge beyond a reasonable doubt. So when a person is found not guilty by reason of insanity, the state has carried its burden on all of the elements of the offense. That is different from other types of defenses. It is a very specific thing, and it's a special jury form. And this makes very clear that if you have not satisfied all of those elements, you don't even get the standards because the state hasn't carried its burden. It also means though that the person who's acquitted by regent of insanity has been proven to have committed action that they are alleged to have committed. Competency is different. This is the legal standard. It's reflecting the well known standard from US Supreme Court as well as State Supreme Court. And it's a rational understanding of the proceedings as well as the ability to consult an attorney, and that's a fluid concept. And that's why you'll see some conversation about competency restoration. Sanity is locked in at the time of the crime. Competency is not. But this is actually something that defendants have understood themselves. You hear it explained by one defendant. Perhaps not in the technical terms that the judiciary might do, but that that was posted. And soon thereafter, this defendant was charged with murdering a woman in the middle of downtown bank and in broad daylight. We, at a certain point, hired an out of state evaluator who spoke to this defendant. And after an initial conversation, she expressed that he believed that basically if he were found incompetent that he would simply be released from prison. And she being from out of state felt that that could be a sign that he didn't understand the nature of the proceedings against it. However, he was right, and that's what had happened to him a previous time he was charged with a crime and found not confident for an assaulted charge, a serious assaulted charge. So in that instance, what sounded like something that was beyond the pale to this out of state evaluator, he he was correct. Attorney

[Sen. Tanya Vyhovsky (Member)]: Was he found incompetent on the murder charge as well?

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: That is yes. We have been through a couple of rounds of this. Okay. So that's ongoing. And he is being reevaluated by evaluators as part of that process then.

[Sen. Tanya Vyhovsky (Member)]: And was he released?

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: He is held right now without bail.

[Sen. Tanya Vyhovsky (Member)]: Okay. So he

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: He's in

[Sen. Tanya Vyhovsky (Member)]: was found incompetent.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: And a previous charge.

[Sen. Tanya Vyhovsky (Member)]: Okay. So he's still being evaluated on this charge?

[Hon. Thomas A. Zonay (Chief Superior Judge)]: That's correct. Okay.

[Sen. Tanya Vyhovsky (Member)]: But he is not out roaming. He is

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: still He is still out. That is correct. The way that the process works right now is we're gonna have to finish all the evaluations. And when that occurs, then we'll have the hearing that will decide whether he can, what happens to things.

[Sen. Tanya Vyhovsky (Member)]: But it's not just a foregone conclusion that someone's found incompetent and

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: That's right. And and that's a really important point, senator. The the competency process, although it requires an evaluator, that is a legal determination that the that the court makes. So there is nothing that is a foregone conclusion even if the evaluators come come forward with a competent or not competent determination. That's subject to an evidentiary hearing in front of a judge, and the judge is the one who makes that decision.

[Sen. Tanya Vyhovsky (Member)]: Mhmm. And then ultimately would also make the decision if if found incompetent if they can be ruled.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: He's That's right.

[Sen. Tanya Vyhovsky (Member)]: Not just like, oh, you were found incompetent. See you later.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: That is that is that is generally true. Okay. You know, as as with a lot of things, there could be permutations, but yes. Okay. So just in terms of the structure of the bill, section one talks about competency restoration, and it does so within the confines of a forensic facility. The purpose of this is to provide for a restorative process in an appropriate setting so that the person can access the process that is due to them. The need for this process is is especially deep in cases like this where a person might experience lack of competency and then, for instance, be hospitalized for a period, become stabilized, and then perhaps return to a facility or another setting where they're not able to maintain that competency. Section two, this talks about dismissal of misdemeanors after two years. And this was included because it is based on the structure that is present in some other jurisdictions where misdemeanor cases that have remained inactive for a period equal to what the potential incarceration could have been. And if they're being inactive for that period, they they end up being dismissed. And that seemed appropriate, especially in the current structure where if a person is found not confident, oftentimes conditions of release can stay in place. You don't necessarily need or want conditions of release to stay in place for a person for year after year after year, especially if there's not really any intention of trying the case and and getting to a conclusion. So this is an appropriate sort of way to address to address that population of cases where after that period of time, they probably won't be addressing. Section three, that speaks to placement of a forensic facility after insanity verdicts. As we talked about, that's occurring afterward after a trial in a case where otherwise there would be a life sentence. I'll note that although it is initially a placement, there are periodic reviews, and there are also mechanisms for supervised release to the community if that person is appropriate for them. Senator, please.

[Sen. Tanya Vyhovsky (Member)]: So this

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: is an

[Sen. Tanya Vyhovsky (Member)]: aspect I'm really confused about. I'm a little confused about how it is constitutional to uphold someone who has been found not guilty. Mhmm.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: And so I would distinguish this from incarceration. This is a public safety based civil commitment for an extremely small population. And the structure of this bill is actually based on the federal statute that does the same thing.

[Sen. Tanya Vyhovsky (Member)]: But we're talking about putting this in a prison. So I don't see how it is different than incarceration. We are still putting someone in prison who has been found not guilty.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: And that would be probably a better question for the operational folks about settings. Certainly, you can have a person maintained in a secure facility for public safety and other needs, public safety and mental health needs. The propriety of given building, for instance, a little outside of the White I'm sure you're gonna see.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: Yeah. No worries.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: I I would note though that there is and I think this is required by due process. There is a periodic review that is triggered by the state. So the state would have the responsibility of triggering judicial review. There is a five year outside timing on that, but it's not required to be five years if folks at the facility believe that the person should have an earlier review. In either of those circumstances, the state would have the burden of bringing that person in front of the judge. The expectation would be that that person would then have would then have counsel who could make the case for release on conditions. These cases are already cases that are subject to what we call a section 7,553 hold pretrial. And so there's a presumption in those cases that that the person would be held pre trial unless they carry the burden of showing that that's an that it's an extraordinary case that warrants release. Much like that structured pretrial here where the person has been proven beyond reasonable doubt to have engaged in the conduct as distinct from being convicted of the crime, but having engaged in, you know, these are really talking about rape, murder, kidnap, is generally the the population of crime we're talking about. That the the state has already carried that heaviest legal burden. And as happens pretrial now, the defense frequently comes forward with a plan for release. Here's how we think this person would be safe in the community. And it follows on that. Again, that is based on the

[Sen. Robert Norris (Vice Chair)]: federal statute.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Section five, that's rulemaking authority. Not much to explain there. And section six, this would for folks who are released on supervised status, this essentially just mirrors the probation process to address any concerns that arise while they're on the status. So what kinds of cases are we talking about in this bill? We are talking about life offenses in Vermont. These generally consist of murder, rape, kidnapping. These are a small number of cases with a large impact on the community. And who would this impact in terms of defendants? It would be any person who's not competent or who's been adjudicated insane in a case carrying a potential life sentence. There are no diagnostic criteria. I know that you've heard a lot of testimony about either hospital level of care. This is a sub hospital level of care. And you'll see that the structure we've actually provided some some clarifying updates to make clear that a person who needs hospital level of care should be receiving that. And, you know, for instance, BPCH, this is not in lieu of the higher level of care for those people who require it. But there are no diagnostic criteria, and this allows a person specific approach to security, care, and competency restoration. Just by way of example, I've had a case where a person is not competent because they they were hard of hearing, but they were also not very good at American Sign Language. And that arose in a not very serious case, but I I use that as an example to sort of get away from the, you know, it's all mental health, it's all medication. The ways that competency restoration based on a person's specific need can really be used to accommodate that person to access the process of student life. The the bill is based on, as I've said, the general structure of the federal statute on the topic. It also takes from other states which have had misdemeanor and dismissals after a period of inactivity. And I and I think that that will help to address some of the backlog that we've talked about with other bills. Why do we want to restore competency? Because the defendants in these cases have been accused of very serious crimes. The public at large have experienced trauma themselves, and this allows people accused of these most serious crimes to receive those combinations that they can access the process that's due to them and put the state to a burden. Nothing about this relieves the state of the burden ultimately of proving the allegations that is brought forward. And I think I've talked about this a little bit, but why does the bill presume that the person goes into a forensic facility at that juncture? And the the point is a procedural one because when a person's found by a jury to have been insane, the state has already carried the burden approving to a unanimous jury beyond the reasonable doubt that the person did engage in an act carrying a possible life sentence, I e, murder, rape, and kidnapping. And at that point, the burden properly shifts to that person to demonstrate that they don't present that risk to the public and that they can be out of conditions. And here I just copied the the federal statute that it's modeled on and you can see the burden of proof for cases for a broader swap of cases, frankly, than this bill addresses, but substantial injury cases as well. It does have that burden on the person at a at a higher level, whereas lesser cases, less serious charges have a slightly different lower burden for that person to reach. Some brief points just based on some of the prior questions that's going to other scene. This issue has already been the subject of numerous studies and years of discussion. And this bill is narrowly tailored to address a very small sliver of the most serious cases where I think that the the need is so acute and so high that if we can address them, this will not address aggravated assaults. We've insidious coming from jail. Other serious felonies still will fall outside of what this bill accomplishes. But, for your murder, rapes, kidnappings, at least that gap would be addressed. We've heard some testimony about the US Supreme Court case. That's already the law, and it doesn't need to be codified into the statute. The concern about codifying case law into statute is that if another case clarifies the previous decision, you then have to come back and either ignore the statute or amend it, which takes too many time. And the judges on the cases, the attorneys on the cases are responsible for applying the constitutional laws handed down by the high court of the country. So that not being in statute would not remove the burden of sale from the from the matter. Just to be clear, you know, I I think that there were some questions around, you know, how long could the competency restoration process take? And I think that is a really person specific question. I think disputes over that between defendants and prosecutors, There's a mechanism in the criminal rules that already is able to address that. That's a rule 48, motion to dismiss in the interest of justice. And that's when you would have a judge look at those particular facts and particular circumstances and the likelihood of circumstances changing and addressing whether or not the case will proceed or not. The review periods, if they those balance, you have to keep in mind in the cases specifically addressed by this bill, these life defense cases, balancing that victim impact of bringing this back up for review. But it also provides due process that's required for the defendant, as well as the flexibility to use a shorter time period based on what the evaluators say. Senator Vyhovsky, I know you had a question about confidentiality in this bill. And so to be clear, this would only and this is currently the case. So this doesn't actually modify any expectations for confidentiality records. The records are not public records, and they would go to the parties in the case. And those parties are just the state of the defendant. So it doesn't provide them to victims or not to the crash or anything

[Hon. Thomas A. Zonay (Chief Superior Judge)]: like that.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: And they should remain confidential essentially till they're if they are utilized in court here in my other party. But that is it doesn't make them generally available to anybody or to even people who are not the attorneys of case. I know that you might hear some some folks suggested section two, the the dismissal fee without prejudice. We're agnostic on that suggestion. You know, we we have no problem with that recommendation or the way that it's currently drafted.

[Sen. Nader Hashim (Chair)]: I would encourage you Jared, can you just for the committee, can you remind the committee what it means when a case

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: is dismissed with or without prejudice? Yeah. So when a case is dismissed with prejudice, it means that it can't be refiled. That is a final case. If it's dismissed without prejudice, it means that at another time, the state can refile it if they think that's appropriate. I think there's a lot of really good reasons why it's appropriate to have it be without prejudice. However, we leave it to the community. And and finally, I I know that at least in prior iterations of the conversation around forensic process, we hear a lot of if you don't, they will come, and we would urge you to not adopt that line of thinking. These cases already exist. They're already impacting people, defendants as well as victims in every county in the state and not addressing them appropriately doesn't make them go away. We have to address this and we we hope that this is sufficiently narrowly tailored to the most serious cases that that this will be an important answer. We have provided to attorney Fitzpatrick some edits, which I'm happy to discuss if you want or or not. They are done in conjunction with, Lori Fisher testified and said she was gonna suggest something. I believe I've incorporated that. And then there's just some clarifying language to try to avoid the need for confusion later on.

[Sen. Nader Hashim (Chair)]: Do you have the the suggested edits Yep. In your PowerPoint? I don't know. I can change them.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: I've gotta change my I apologize.

[Sen. Nader Hashim (Chair)]: Okay. Yeah. I think that we can we can hear about the suggested edits. I also had some other questions regarding other suggested edits that we've gotten. And tomorrow, I believe we're hearing from Leg Council and we can hear their take on the edits if they're available.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Sure. So previously the draft had said deemed a person in need of treatment. That can that I, in reviewing this, seemed like it could cause confusion because that can also be a consideration for an order of hospitalization. So just to clarify that we're talking about a person currently receiving a patient treatment for an order of hospitalization would be the population carved out. Let's just clarify and not use that other term of art. Is that a narrower group of people from

[Sen. Tanya Vyhovsky (Member)]: the language currently in the bill or a wider group of people?

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: It's supposed to be the same group as was intended when that was put in. But in rereading the definition and how the courts apply person in need of treatment, I think that there was concern and I specifically have concern that it might be unclear that we're talking about the people who need hospitalization as a person need the treatment, not just some mental health treatment.

[Sen. Tanya Vyhovsky (Member)]: Okay. So this clarifies to get to that narrow group, whereas this language could have been interpreted to be a much broader group.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: That's right.

[Sen. Tanya Vyhovsky (Member)]: Okay. Thanks.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: The next piece is here in the forensic facility for persons acquitted due to recent insanity. This is really just seeking to more closely align it with the federal statute that I have on the screen earlier to take more of the language from the federal model. So again, not supposed to be a substitute change so much as just clarifying language and and talking with other stakeholders in particular. Trying to do it. Wanted to clarify that we really are trying to follow that federal structure. And then this is in in consultation with attorney Fisher. The Department of Corrections was concerned about a circumstance where they're responsible for supervising a person in the community, but then also have the burden of establishing a violation of that supervision in court. And so in our conversations, we agreed that it'd be more appropriate in the same way that we do now for probation violations that the state's attorney would be the the person with the responsibility to put the case on and have the verdict approved instead of the department themselves having it. It seems like it would muddy the roles a little bit otherwise. So in those conversations, that's why we have to set up. And finally, just added a definition of forensic facility because it it occurred to me we never actually defined the term. So here it's just it's a secure facility or placement or physical placement allowing for secure evaluation, treatment, and care of individuals involved in the legal system.

[Sen. Robert Norris (Vice Chair)]: Can I just ask

[Hon. Thomas A. Zonay (Chief Superior Judge)]: a very small question? Do you intend the hyphen

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: for evaluation? No. I think that's actually a track changes. Okay. It's showing a deletion of a space.

[Sen. Robert Norris (Vice Chair)]: So I see. Would

[Sen. Tanya Vyhovsky (Member)]: that and it might this may be a better question for our legislative council, but you're sitting here. So with that definition as you proposed it, would that be construed to actually bring in people who are currently being treated at the state hospital?

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: No, no. I don't believe so, or at that's certainly not the intention. I think to address any concern, and I'm happy to make this change essentially right now and send it back to Eric, but we could just say who do not require a hospitalization level of

[Sen. Tanya Vyhovsky (Member)]: care. Okay.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: And I think that's a that's a that's a fair point. So we'd have no problem involved in the legal system who do not require hospitalization level of care might be an appropriate clarification.

[Sen. Tanya Vyhovsky (Member)]: Okay. Yeah, it just as I read it, was like, that feels like it might suck in folks. So I appreciate that. Thanks.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: And are there any other questions? No. Not on not on these

[Sen. Nader Hashim (Chair)]: suggestions here. I I did have one regarding a suggestion from AHS. The question about diversion and misdemeanors. Were you able to see that suggestion? I I was able to look at that. What's can you share your thoughts on that?

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: My initial thought is I I I think because this is such a narrowly tailored piece of legislation to address a specific need, I I and because that is not an issue that I think has been sort of really vetted in the way that this one has and developed over time, that perhaps attaching that to this piece of legislation isn't the best path forward. I think because of the scope of the proposal, it would need a lot of looking at to see what kind of cases are we sweeping into that, for instance. Because, you know, as it's currently drafted, it would be all misdemeanors. Misdemeanors include domestic assaults, stalking cases, DUI twos. There's also a question about whether a person who people are concerned can't be present and engage with a trial where they don't have to speak, they don't have to testify necessarily, although they have the right. Whether the more restorative process that they would typically go through for diversion is the best plan to address the population. And and finally, you know, a person who may not be confident may not be confident for diversion, but still can't be tried for events. And so I think all of those issues really need be flushed out, and I'm not sure that this is if that's necessary to address an issue with this bill. Thanks.

[Sen. Nader Hashim (Chair)]: That's actually all I have for now. Committee, any other questions or comments?

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Anything else from here? No. Thank you all in any way that I can be of service to the committee, I'm

[Sen. Nader Hashim (Chair)]: happy to do that. Thank you. Appreciate your time. Next up, we have Judge Zoeh.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: So good morning.

[Sen. Nader Hashim (Chair)]: Good morning. Good to see you in person. Good to be here.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: Not moving as quickly as I had near as fast, but we'll get in there. So Tom's NHH superior judge. You previously mentioned the question about the US Supreme Court case. In Indiana v Jackson v Indiana, the US Supreme Court held that a person charged by a state with a criminal offense who is committed solely on account of his incapacity to proceed the trial cannot be held more than a reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. The court further set forth that if restoration was not achieved within a reasonable time, quote, the state must either institute the customary civil commitment proceeding that would be required to commit indefinitely as any other citizen or release the defendant. And I start with that because I can't comment on a lot of this bill because there is little doubt that the questions that the court has put out, what is reasonable And the procedures that are adopted will one day be it's highly likely they'll be challenged is six months is nine months. And so as far as giving any testimony about the bill looks you should do X, Y or Z or put this timeframe in or that, it's a matter that will come before the votes. It is happening in the country. And so the policy decision as to whether to develop this is one that certainly have been made in other states. It sounds like the bill has been put together in an effort to try to address the concerns that give rise to it, as well as to address constitutional concerns and not those issues for the courts to address. But there's not a lot I can say there. One thing I was gonna comment on was and I saw mister Bianchi had made some requested changes to the provision about someone who's found not guilty by recent insanity. If the bill says if someone's acquitted, a person who has been acquitted of an offense punishable by it, that's on page four, line seven. I would I like the language that Mr. Bianchi used about found not guilty by reason of insanity because this would suggest that if a jury found they didn't do it, even without the insanity that they can still be committed. So you wanna make it very clear that it's only with what

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: we would phrase the NGRI. Mhmm. Senator Mattoski?

[Sen. Tanya Vyhovsky (Member)]: I'm not gonna ask you to weigh in on the language of the bill because your reason for not doing that seems really valid. What I am curious about is if there is any existing or developing case law around what is reasonable and and sort of the aspects of the bill. You know, I I know you said that this has been done in other states is being challenged. So is there a case law?

[Hon. Thomas A. Zonay (Chief Superior Judge)]: There is case law from throughout the country that the court would look at and legislatures are making potential can make changes depending on that. Some states have set numbers, they have timeframes, other states have different types of structures. But yes, the short answer is law, which would certainly be available for the Supreme Court of Vermont, which any judge will not to use as far as being persuasive. It's not binding unless it's the US Supreme Court.

[Sen. Tanya Vyhovsky (Member)]: And there's no US Supreme Court case law on this issue other than the one you just said?

[Hon. Thomas A. Zonay (Chief Superior Judge)]: Well, there's other case law, it's fact driven because

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: you have to find

[Hon. Thomas A. Zonay (Chief Superior Judge)]: a reasonably probability and things like that. So the court has to look at the specific facts and it's not a something you can say, it's a one size fits all. It's okay, you put these facts in, you weigh them out and then how does it come out? So there's factors considerations.

[Sen. Tanya Vyhovsky (Member)]: Is there any specific relevant case law that committee should look at in making I these

[Hon. Thomas A. Zonay (Chief Superior Judge)]: cannot say that I have done the research such that I can say, look at X, Y, and Z cases. I think that there's state may have cases they think you should look at, the defense may have ones they think you should look at, mental health, DMH may have one so.

[Sen. Tanya Vyhovsky (Member)]: Okay, that is good information.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Any further questions? Again, it's

[Hon. Thomas A. Zonay (Chief Superior Judge)]: a policy decision and, I mean, certainly, is there are individuals who would fit this category that currently there is no structure in place for the program of competency restoration. So I do say it's something that I'm aware the legislature has been looking at it again like other states. Senator Monsieur.

[Sen. Tanya Vyhovsky (Member)]: Do you know roughly how many individuals would fit this?

[Hon. Thomas A. Zonay (Chief Superior Judge)]: I don't know the answer to that.

[Sen. Tanya Vyhovsky (Member)]: Okay. What

[Sen. Robert Norris (Vice Chair)]: time? I'm sorry.

[Sen. Nader Hashim (Chair)]: The state's attorneys know.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: On record, of state's attorneys and sheriffs, when we looked at the last few years, the the average that we've called into this category is about four or five at any given time. I mean, that could range a little bit, but at any it's a small subset.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: I will comment that if you would have said take a guess, I would have said my guess is four or five. So it's consistent.

[Sen. Tanya Vyhovsky (Member)]: All right. I generally try not to ask people to just take a

[Hon. Thomas A. Zonay (Chief Superior Judge)]: guess on it. No, I know that, but that would seem consistent with what it

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: would be. Committee, any questions? Okay. Thank you. Well, thank you. Yeah,

[Hon. Thomas A. Zonay (Chief Superior Judge)]: Have a great day. Yeah. You as well. Got a new knee. I was in it. And so I'm glad to shed that within the next couple days and we're getting back. Good. Yeah. And once I hit my range of motion, now so I can shave, that was a motivating factor. So we're good. Have a good day. Yeah.

[Sen. Nader Hashim (Chair)]: So, maybe we have a couple of minutes and we'll get a break

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: in probably before fifteen. But

[Sen. Nader Hashim (Chair)]: what are the general thoughts, feelings about this bill? I

[Sen. Tanya Vyhovsky (Member)]: don't know that my thoughts and feelings about this bill are fully baked or developed yet. Okay.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: I do wanna talk

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: to you guys real quick. So

[Sen. Robert Norris (Vice Chair)]: It does seem narrowly tailored. Obviously, it should be. So in the absence of any testimony that points out a danger to what's happening here, it seems a rational approach. And looking at the bill from a little bit of testimony we have taken, I'm certainly supportive of forensic facilities system in Naderio. I wanna talk about how we get there, what the cost are gonna and the caution really come into play because it's a much needed time. So we live in state of Vermont, so I'm I'm liking what I've heard from testimony so far. And hopefully, by the time we hear from everybody here, we'll have made up

[Sen. Nader Hashim (Chair)]: of our minds as to

[Sen. Robert Norris (Vice Chair)]: the expression we should go on. And and we're the one

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: that's gotta come up with the money.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: Yeah.

[Sen. Tanya Vyhovsky (Member)]: Alright. So I know we're

[Sen. Nader Hashim (Chair)]: also gonna get the suggested edits to ledge counsel, and I'm gonna meet with them tomorrow to go over those and we'll get a new copy of the bill. And then we can do another walk. There were also the suggested edits from AHS. I'm inclined to remove the or to not add the diversion piece. Though I'm curious with us, if you have any on the additional proposed changes from AHS. And I think we're also hearing Karen Barber tomorrow, actually.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Yeah. Why because I had asked a

[Sen. Robert Norris (Vice Chair)]: question about the proposal piece and this is both. Why are you inclined not to include the proposal piece?

[Sen. Nader Hashim (Chair)]: Largely based on what Jared describes a few minutes ago, just with how the scope of the forensic facility bill is quite narrow, it's a point to four or five people, whereas the diversion piece is quite broad in scope and would apply to all misdemeanor cases. I don't know that it is that given the amount of

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: work that we have to do

[Sen. Nader Hashim (Chair)]: to make sure all the other pieces of this bill, the narrow parts of the bill are feasible, it will be able to really get into all of the weeds of the misdemeanor diversion section. I mean if there are other perspectives, I'm happy to be proven wrong and have it, but that's my initial take on.

[Jared Bianchi (Deputy State’s Attorney, Bennington County; testifying for State’s Attorneys & Sheriffs)]: Alright. Well,

[Sen. Nader Hashim (Chair)]: I'm not good. I guess we anything else? Okay. Alright. So we can pause until ten