Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Sponsor, H.744; Chair, House Judiciary)]: You're alive.

[Sen. Nader Hashim (Chair)]: Hey, good morning. It is March 26 and Senate for this year. We're taking up H744. We don't have a quorum, we're not going make any policy suggestions or make any changes, but we do have the sponsor of the bill to provide some what it does and why it's being proposed. So yes,

[Rep. Martin LaLonde (Sponsor, H.744; Chair, House Judiciary)]: so the joint Rules Committee, the Municipal Rules Committee, received a proposal to amend Rule three, specifically subsection K of Rule three relating to what happens after an arrest that the law enforcement has to contact court officer, the judge, determine whether to release or hold a person and they will presumably talk about what the underlying events were. The legislature, I think something like six, seven years ago, amended that provision to say that the law enforcement officer had to also provide what charges that the law enforcement would take, which it took us a while to get to the point of fixing that error because that is an error because law enforcement doesn't charge people. That's what prosecutors do. So in fixing that error, my understanding, and Judge Creadwell can correct me if I'm applicable, my understanding, the Criminal Rules Committee for the Courts, the Advisory Committee for the Rules, looked at that section, struck that language, but then added additional language that stated that the prosecutors shall provide what their targets are and also may provide additional information regarding whether bail is set, what conditions there should be, whether this should be hold without bail. So that this usually happens after hours. So law enforcement will call the court. This change would also then require prosecutors to be involved to explain to what the charges would be and whether they're going to be held overnight or over the weekend because usually the next day they are actually in front of the judge and the charges may change by then. The doctors may have changed their mind as far as what the charges should be. Anyway, there was a lot of pushback that rule changed and that was, I've been on the host committee for twelve years and that's the first time that there was significant controversy. The BSEA, the state's attorneys, deputy state's attorneys essentially explained that this would be really difficult for them to implement and that things were working fine as it is. So the Rules Committee, we decided actually to punt it to the legislatures, in part because we initially made that error at six, seven years ago when we said law enforcement could charge people. So we thought we could fix that. And we also added the additional language, but we did it a little bit different. We said that the court may require, rather than shall require, prosecutors to say what the charge is. And essentially we really felt from some of the testimony that we received that this was reflecting current practice, was codifying, essentially codifying current practice, and it wouldn't cause the same upheaval that the underlying rule would cause. So that's what it's relatively straightforward what we've done here, but I know that Judge Craig will probably has a different viewpoint of this. Definitely I suggest you hear from a representative of the SCA, corporate and deputy state securities just to hear their side of that. Are allowed either the legislature or the courts can change certain rules. There are rules that involve core functions of the courts that we try to avoid messing around with, but this particular rule has been changed by the legislature and the courts numerous times over the years. This is really a rule that we have as much authority to change the rule as does the courts. I'm happy to answer any questions.

[Sen. Nader Hashim (Chair)]: So just to distill it down a bit, the change so if if this were to be implemented in court, then what would be required of the police officer would be for them to tell the court officer about the conditions of the lease and any orders to hold without bail potentially or So it would be the officer then talking to the state's attorneys first

[Eric FitzPatrick (Office of Legislative Counsel)]: and then

[Sen. Nader Hashim (Chair)]: just run through the order of operations.

[Rep. Martin LaLonde (Sponsor, H.744; Chair, House Judiciary)]: It would depend. I mean, would depend. My understanding is it depends. It would depend on the judge. It would depend on the relationship the judge might have with particular law enforcement officers that they've had a long relationship with. Depends on what the underlying case or the underlying alleged offense was. I mean, there's a lot of things that it depends. And let me also make very clear that judges can and do individually decide that I want to hear from the prosecutor on every overnight case. If the judge or a particular judge is on the call, they then decide that they need to hear from the prosecutor. But it also gives the flexibility that there may be certain, like I say, certain situations or certain individuals that they've dealt with that they don't need all that information, and that's why it says vague.

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

[Rep. Martin LaLonde (Sponsor, H.744; Chair, House Judiciary)]: And the same thing, mean, underlying rule, the only place where it said shall is that the prosecutor's shall, I mean, the rule that was proposed, I should say, from the Criminal Advisory Committee on Criminal Rules had to do with the charges. It was still in May for additions of the lease.

[Sen. Nader Hashim (Chair)]: Committee, any questions or representative?

[Rep. Martin LaLonde (Sponsor, H.744; Chair, House Judiciary)]: A quick one, just getting back to the order and how things happen. So back in the day, when law enforcement officers would pick somebody up, they didn't necessarily contact the state's attorney's office. But didn't Bill necessarily report to that, ma'am? Depends on what the judge for the particular unit, the particular court decides whether they want law enforcement to always contact the prosecutor or if there's certain types of offenses that they may not need to contact the prosecutor. So there's some flexibility. And again, I think from what I understand, pretty much that's how it works right now. This really just modifies the people.

[Sen. Nader Hashim (Chair)]: Martin,

[Rep. Martin LaLonde (Sponsor, H.744; Chair, House Judiciary)]: I'm sorry.

[Sen. Nader Hashim (Chair)]: Think I know how to raise the question I want to ask here. So I guess I'm curious about if any questions came up about attorney work product being put into affidavits that are presented to the court prior to the prosecutor formally asking for a certain condition or somebody without bail or whatever it may be. Was there any conversation about that?

[Rep. Martin LaLonde (Sponsor, H.744; Chair, House Judiciary)]: Yes, no, we did hear that that was a concern but I am trying to remember if this was in testimony, but I think it was in testimony that we asked Judge Dredwell about this, but it may have been an offline conversation that I had with Judge Zoning or Judge Craig Hall, but I think it was in testimony saying that that really shouldn't be considered a problem. Exactly why I wanted to ask judges, because I can't recall exactly the rationale.

[Sen. Nader Hashim (Chair)]: All right,

[Eric FitzPatrick (Office of Legislative Counsel)]: thank you.

[Rep. Martin LaLonde (Sponsor, H.744; Chair, House Judiciary)]: All right, Tanya. Thank you very much. Hello, Judge Treadwell. Sorry I can't stay. I'd love to stay and hear you, but

[Eric FitzPatrick (Office of Legislative Counsel)]: Representative we'll catch up another

[Judge John Treadwell (Vermont Superior Court; Chair, Criminal Rules Committee)]: Lovland for the succinct and accurate description of how the bill works.

[Eric FitzPatrick (Office of Legislative Counsel)]: Alright. Well, good. Thank you.

[Sen. Nader Hashim (Chair)]: I think thank you. Good morning, Fredwell. Good to see you.

[Judge John Treadwell (Vermont Superior Court; Chair, Criminal Rules Committee)]: Good morning, senators. Thank you for the opportunity to testify, and also thank you for the opportunity to testify remotely. I am, presently in the Windham Civil Division here in Newfane, a building, regularly described by former, judge Wesley as a temple of justice. It is a really remarkable location. I'm here to talk to you about H 744. I think that there are various things that I can address for you. First is the reason for this change. The second would be, if you are interested, the work of the Criminal Rules Committee on amendments to Rule three ks, and I can also talk to you generally about the practices and procedures employed by judges when they are on call in the criminal division. I'm not presently assigned to a criminal division court, but I was from September 2018 to September 2025, and I was on call for seven years. So I have experience in both Windham and Windsor County, with being on call. I suspect I may have actually received after hours calls from Senator Hashim while he was with state police.

[Sen. Nader Hashim (Chair)]: There were a few times.

[Judge John Treadwell (Vermont Superior Court; Chair, Criminal Rules Committee)]: But with respect to the proposal here, the the the provision rule three k is is addressed at properly setting bailing conditions for persons who've been arrested without warrant after hours pending an initial appearance and arraignment, the next business day. I mean this can be people who are detained for just a short period of time, you know, in the early hours of the morning and seen, you know, promptly the next day at 01:00, but it also can be, you know, people who are arrested on a Friday afternoon and are not seen until Monday. So the key point here is, and the purpose of this rule change is to one, properly recognize existing practice and correct what I think is a misstatement of the law in the existing rule. And two, to make sure that the judges or judicial officers who are making these decisions have the maximum information available to make the best possible decision as to bail and conditions of release. And it's important these these orders that these courts courts make after hours are important because they are they are relevant to protecting the victims, they're relevant to protecting, the community generally, they are relevant to ensuring, the appearance of persons at court the next day, and also they are relevant to protecting the liberty interests of presumptively innocent people. These are people who actually have not even been charged yet. They've just been arrested for a criminal offense. So the the the practice varies from county to county. Rule five b allows the presiding judge in each criminal division to set practices and procedures regarding, after hours arrest. It actually requires the presiding judge in each criminal division to do that. And, there are varying practices across the state. There are counties where either the judge or the state's attorney requires that whenever a person is arrested after hours and is not just gonna be released on citation in the ordinary course of business, that there must be a call to the prosecutor to discuss the possible charge and bail and conditions of release, before there is any communication with the judge. It's worth noting that a a number of years ago, actually in 2018, the legislature amended this rule to specifically require that law enforcement prepare and complete an affidavit, a charging affidavit, to be provided to the judge before any contact was made with the judge. So there has always been this requirement for at least eight year almost eight years now, that an affidavit be prepared. What we're talking about here is additional information from the prosecutor that might frequently is relevant to the decision regarding bail and conditions of release. A critical example of this, for example, is, the actual charging the decision decision that is going to be made. Law enforcement makes a recommendation as to the charges that they believe are that they have probable cause for. That is not binding on the prosecutor. The prosecutor independently reviews the facts as set forth in the affidavit and makes a charging decision. But the actual charging decision has, makes a critical difference in what decisions can be made regarding bail and conditions. For many years, and as I understand it may come back, expungible or sealable offenses were subject to a $200 bail cap. So if a decision is made, by the prosecutor to charge an expungible offense, the cap would be $200, even though the facts might support a different offence that is not expungible. Additionally, there are certain offences of felony crimes of violence for which persons can be held without bail. And there may be cases where law enforcement believes that the facts support a charge of a felony crime of violence, but the prosecutor's office may choose to charge it as a misdemeanor or some other felony, and therefore, the defendant would not be eligible to be held without bail. It is important for the judges to know and understand this charging decision when asked to make overnight decisions about bailing conditions. Prosecutors, particularly in the smaller counties, may have significant history with the defendant and may be, aware of information about the defendant that law enforcement is not aware of, and the court should have access to that information. Fundamentally, the purpose here is to ensure that the judges have the best possible information which, when making these decisions, which are directly related public safety, victim safety, and the liberty interests of the persons who are being charged. So that's the purpose.

[Sen. Nader Hashim (Chair)]: If I could interrupt real quick. Sure. I understand why the charging decisions, why it makes sense, but conditions of release, for example, why would that be relevant in in this context?

[Judge John Treadwell (Vermont Superior Court; Chair, Criminal Rules Committee)]: Well, it's, so bail is a condition of release. So it's, you know, is is the state going to be requesting bail, for example, I think is is relevant. The the point of bail is to ensure appearance. There may be situations where, there is there could be reasons to believe that a person might be at risk of flight, but ultimately, the calculus is that they are not a risk of flight. There are policies that state's attorneys' offices have regarding bail and conditions of release. Law enforcement is not necessarily required to be familiar with those or understand those. So it's my view, and I think the view of most judges, and certainly the view of the Criminal Rules Committee, that it is, important that a prosecutor weigh in on a recommendation regarding bail and conditions of release. I mean, conditions of release significantly affect liberty interests. People are removed from their homes. They're not allowed to go places. They're placed on curfews, at least temporarily. It it seems that to to me that the court should have the maximum possible information and understand what the state will be recommending, understanding the information will be completed incomplete at this stage, but understanding what the state will be recommending before setting bailing conditions overnight.

[Sen. Nader Hashim (Chair)]: Thank you. Further

[Judge John Treadwell (Vermont Superior Court; Chair, Criminal Rules Committee)]: questions at this point? I can provide you some history of where criminal rules is with the process if that is helpful. As I said, earlier, this rule this rule was amended by statute in 2018. There was then an emergency amendment by the court, I think, that same year, because there was a lack of clarity in the statutory enacted language as to whether an an actual charging information had to be provided to the judge overnight. That that was cleared up by, by emergency amendment by the court. Then the subsequent legislative session in 2019, the existing language regarding the affidavit or sworn statement must indicate the crimes to be charged by the arresting officer was added. And and it's that language that we are trying to address because that's not an accurate statement of the law. Prosecutors charge, not law enforcement. And then the additional language, additional language very similar to seven forty four was one of several options that the criminal rules committee considered. Were three options, option like this, which requires law and requires that it says that a judge may require the prosecutor to provide a charging decision and may require them to provide provide bailing conditions of release. Another alternative was that they must provide a charging decision and may provide recommendation regarding bailing conditions of release. And the final option was a must must. So they had to provide both. The committee went with the middle option must provide a charging recommendation of may provide conditions of release. That was a proposed rule that was sent out for comment. There were no comments received by the Criminal Rules Committee from states attorneys, VSEA, deputy states attorneys, as part of the ordinary course. The matter came before the legislative committee on judicial rules, at which point comments were submitted to the legislature, at least initially by deputy state's attorneys. And there was a request that, well, because it was a proposed rule, committee reconsidered it further. The legislative LCJR did not take formal action at that time. The Criminal Rules Committee met in February. At that point, we had specific comments from both state's attorneys and deputy state's attorneys, And I had solicited comments from the defense bar as well. I didn't know anyone to hear from prosecutors. The defender general's office in the private bar did not submit any comments. The Criminal Rules Committee met in February and concluded that we would stick with the language we already had, which was the must may option. Senator Hashim raised the question of work product and whether the language here implicates work product. It is my perspective that it does not. All it requires is a statement as the charge to be filed, not the thought process of the prosecutor in making that decision. Similarly, with respect to bail and conditions of release, it doesn't require, that the prosecutor's thought process, be included. And, you know, fundamentally, this is obviously an initial decision based on information available during the overnight hours, not the full decision that would be made by the prosecutor at the time the charges are filed if charges are filed. So, after the committee met, the house, moved on moved h seven forty four further. I, as the chair of criminal rules, have held off on transmitting, the proposed rule from criminal rules to the court for further action, pending to see what the legislature does, because I don't think it makes any sense for the judiciary to act if the legislature is going to act. And that's where the process is currently. Criminal rules is holding, its draft pending legislative action.

[Sen. Nader Hashim (Chair)]: Thank you. Judge, I I do have one other question that wondering if you could walk through to how you would you would anticipate this happening. So let's say on a Sunday, middle of the night, Sunday, prosecutor know, puts in the affidavit that I'm sorry, the police officer puts in the affidavit that there's going to be a certain bail amount requested at the initial appearance. But then at the initial appearance, after preparing in the morning the prosecutor realizing

[Rep. Martin LaLonde (Sponsor, H.744; Chair, House Judiciary)]: that the prosecutor

[Sen. Nader Hashim (Chair)]: is going to ask somebody to be held without bail. What can you describe how the court would handle a difference between what is being asked at the initial appearance versus what is being asked in the overnight phone call?

[Judge John Treadwell (Vermont Superior Court; Chair, Criminal Rules Committee)]: Sure. And I have significant experience with that where I have received overnight phone calls. There has been a recommendation for bail, and then the next day at arraignment, I've had a different recommendation from the prosecutor, sometimes higher, sometimes lower. I can only speak for myself, but I understand that the information that is available in the middle of the night is not complete. Additionally, facts may have changed in addition to new information becoming available between the time the after hours call was made and the time when, the person appears, before the court for their initial appearance and arraignment. I don't believe that the overnight decision is in any way binding on the court. I have had situations where there has been an after hours request to hold someone without bail, and then at arraignment, there is no request to continue detention and no request for bail. Obviously, that at some level is concerning that someone may have been, detained unnecessarily. But, it doesn't mean that I I'm not going to, strongly consider the state's recommendation in those, situations. Similarly, there have been situations there are rare situations when an individual is released on a citation and appears the next day and there is a request for bail. That does occur. And in some circumstances, it is, it may be appropriate to set bail. By statute, if it's a misdemeanor offense, that can't happen. If a person just appears on a citation, bail can't be set. But, you know, there have been situations, and I can think of one fairly recently, where an individual appeared on a citation and was subsequently detained.

[Sen. Nader Hashim (Chair)]: Thank you. Committee, any questions for judge Gretelman? Do you have any further comments or suggestions recommendations for this language?

[Judge John Treadwell (Vermont Superior Court; Chair, Criminal Rules Committee)]: I think the language as passed by the House, is an accurate statement of existing law and the existing authority of judicial officers, to basically require that information be provided, that they feel is necessary to make these important decisions after hours. So I don't think I have any suggestions to the to add to the or change the language at all.

[Sen. Nader Hashim (Chair)]: Thank Okay. Thank you. You, Jud. We'll be hearing from some other folks like this, and then we'll go through the process. So, yeah, thank you for taking the time to testify.

[Judge John Treadwell (Vermont Superior Court; Chair, Criminal Rules Committee)]: Happy to do it, and if there are further questions or further issues come up, I'm happy to appear again before the committee. Thank you all.

[Eric FitzPatrick (Office of Legislative Counsel)]: Have a good day.

[Sen. Nader Hashim (Chair)]: You as well. Thanks. All right. We're spending a long time there. Don't have Ledge Council on the agenda, I believe, but we would still have to hear from Ledge Council because we didn't. Sure. Yeah. So, If you want to join us, I think we got a pretty clear walkthrough on the bill, but if there are if there's additional information you want to provide us or any questions that you think we should be contemplating with this, floor is all yours.

[Eric FitzPatrick (Office of Legislative Counsel)]: Sure. Thank you. I want to give everybody, Erica Platrick with the Office of Legislative Council. Here to talk about 08/07/1944 and activate the procedures for release after arrest. I think as Senator Hashim was saying, you've probably heard already pretty much subjectively how the bill works. And we couple of additional pieces of background I might provide would be that you'll see the language two pieces about specific references in the language specifically says that procedures and standards established by the presiding judge of each unit pursuant to rule 5B may, and that was what Judge Treadwell was referring to, that's line 16, may require that the affidavit or sworn statement include their charge or charges that the prosecuting attorney intends to file, and may, that's also line 17, and may require that the affidavit also include any conditions of release including bail. So you got those two. I think if I heard Judge Kerbal correctly, he was mentioning that during the rule, it was first proposed by the court, which was reviewed by the judicial rules committee, that first May on line 16 was a shall. So that's the difference, substantively, that the first in this proposal passed by the House, it's May May rather than shall of May. So two things about that. First of all, says, presiding, this is saying that these rules, these procedures and standards established by the presiding judge of each unit may require. So just so you know, that fits in with what rule five currently does require for The first sentence of Rule 5B is

[Rep. Martin LaLonde (Sponsor, H.744; Chair, House Judiciary)]: the Rules of Criminal Procedure,

[Eric FitzPatrick (Office of Legislative Counsel)]: specifically says, the presiding judge of each unit shall, so that's a requirement, shall establish procedures and standards by which persons arrested with or without warrant other than during normal business hours may be released pending appearance. So each judge, each presiding judge in each unit has to establish, because that's a challenge, these standards and procedures. So what the basic thrust of the bill is that, well, okay, the judge has to establish those under this rule, or under these procedures and standards. And the rule says, all right, when you're doing that, those procedures and standards may also require that the affidavit or sworn statement include the charge that that the prosecutor is going to file. And I think that Judge Chittenden will say that reflects her practice as well. So that's just so you have a little bit of a grounding in what is in Rule 5B currently. The second point about this, it's a little unusual, you may have noticed the affected me. So there's a reason for that. And that as Judge Trevell was also alluding to, this has been the subject of a lot of back and forth between the legislature and the court. And the court, the rules committee at least met with February, last posture that Judge Churchill indicated was that they were gonna stick with their approach at that time, which would have been on line 16, a shall, not a may, different than this. So the idea here was that the intent of the bill was that whatever the court decides to do in the meantime, this would supersede it. See what I mean? And the reason for that is because promulgation dates for judicial rules these days, the next one coming up would be July 1. It's twice a year, December 31, or sorry, January 1 to July 1. So the idea would be that, well, if the court had decided to go ahead and promulgate a shall instead of a may on line 16, the intent was that this would control because this would be effective one day later. You know what I mean? However, I understood from what judge Stradwell just said was that that may be moved because he's as he indicated, they're gonna hold on that role and wait and see what the legislature does because we saw that it didn't really make sense for them to make a change if the legislature was going to make the same change or make a different change. That's correct. I

[Sen. Nader Hashim (Chair)]: see what you're saying. And if they're holding off, I wonder if we would just want

[Rep. Martin LaLonde (Sponsor, H.744; Chair, House Judiciary)]: to make it effective upon passage. That just

[Sen. Nader Hashim (Chair)]: makes things a bit more efficient.

[Eric FitzPatrick (Office of Legislative Counsel)]: I think it's a Mechanically, it works either way. So it's totally up to the committee.

[Sen. Nader Hashim (Chair)]: Did you have a question?

[Eric FitzPatrick (Office of Legislative Counsel)]: Eric explained it. So July 2 is a Thursday, a random Thursday, I was like, why did they pick that? But makes sense that they were trying to, wait out that July 1. That's right.

[Rep. Martin LaLonde (Sponsor, H.744; Chair, House Judiciary)]: Yeah.

[Sen. Nader Hashim (Chair)]: Okay. So we should hear from the SCEA, state attorneys, and defenders for this one. But did the house hear from anybody else aside from those three that I just listed?

[Eric FitzPatrick (Office of Legislative Counsel)]: Not that I'm aware of, but in case I'm missing somebody, you might wanna have ask Henry to double check the the witness list, but I think those were the photos that I recall. Okay.

[Sen. Nader Hashim (Chair)]: Alright. Sounds good. So we'll do that. I'm ready to do make a note for those three folks. Three organizations. Figure it out the next week. Any questions for Eric? All right. Thank you, Eric.

[Eric FitzPatrick (Office of Legislative Counsel)]: Right here. Sorry. Looks like grade 10.

[Sen. Nader Hashim (Chair)]: Yep, it does look like grade seven. Okay, alright, so we can break until ten, and we'll come back and we'll pick up 849.