The Vermont judiciary is ignoring lawmakers’ intent by continuing to conduct arraignments via video conference, according members of the Justice Oversight Committee.
“We’re talking about this because we thought we passed a law saying you can’t do it,” said Sen. Dick Sears, D-Bennington, vice chairman of the oversight panel and chairman of the Senate Judiciary Committee.
Defender General Matt Valerio raised concerns this year that a pilot program using video conferencing limited the ability of attorneys in his office to confer privately with their clients.
Since the program began in 2015, defendants at the Chittenden Regional Correctional Facility in South Burlington, Vt., have been linked by video with Chittenden Superior Court.
In these remote hearings, defendants at the prison are on one end of the connection, and their lawyer, the judge and the prosecution are on the other end in the courthouse.
Defendants still have a private conference with their counsel beforehand, also typically via video conference while the lawyer is in a private room at the courthouse.
Valerio said the logistics of the pilot program have undermined the confidentiality of the proceedings and kept public defenders from fulfilling their obligation to provide their clients the best defense possible.
Jessica Brown, the supervising attorney for Chittenden County in the Defender General’s Office, told the oversight committee that her clients have had to use the video conferencing setup in a public area of the prison, meaning they can be overheard by correctional officers and other inmates.
Brown said her clients were unable to have the type of instantaneous secret communication with their lawyers that a courtroom whisper would afford.
“We cannot get information that we should get to effectively represent people at their appearance,” Brown said. “We cannot discuss the facts of the case with them to determine if there might be a challenge to a probable cause finding, because for them to speak about the facts of their case in a public setting, essentially, is to their detriment and potentially jeopardizes their case.”
In his testimony before the oversight committee on Tuesday, Chief Superior Court Judge Brian Grearson agreed that preserving confidentiality is essential but said it was a problem that could be resolved.
Grearson disagreed with Sears’ assessment of legislative intent.
“We’re not trying to pull a fast one, if you will,” Grearson told the committee while defending the use of video technology.
The disagreement stems from an esoteric distinction between different parts of what occurs at a typical arraignment.
In a provision in this year’s appropriations bill, the Legislature amended Rule 43 of Vermont’s Rules of Criminal Procedure.
The rule concerns the presence of defendants at their arraignment hearings. It was amended to prohibit video arraignment without the express consent of the defendant and, in the oversight committee’s view, to pause the pilot program until questions of confidentiality and other issues were resolved.
Grearson said that, since the amendment went into effect on July 1, the judiciary has conducted video conference hearings only for court proceedings governed by a different provision, Rule 5.
That rule, Grearson told the oversight committee, covers only the first part of the proceedings that typically take place at an arraignment: the assigning of legal counsel, the scheduling of an arraignment date and the establishment of probable cause. It does not cover entering a plea, which is central to an arraignment, he said.
“What has happened over the years,” Grearson said, “is that the Rule 5 proceedings have tended to blend in with an arraignment’s proceedings. But Rule 5 is a standalone rule.”
Grearson said all defendants are entitled to have their arraignment at a later date — and some do — but most choose to have their arraignment begin immediately after the Rule 5 proceedings. When using video conferencing, that means the arraignment is also done remotely if the defendant gives consent.
Valerio strongly disputed Grearson’s interpretation of the rules.
He said it’s contrary to common usage to consider Rule 5 proceedings as separate from the rest of an arraignment. In fact, he argued, the judiciary would not have recognized a distinction if he had tried to handle Rule 5 proceedings remotely in the past.
“If I came in and made that argument,” Valerio said, “that we want to sit at our desks and do the Rule 5 portion of the proceedings, I would be laughed out of the courthouse.”
Rep. Mary Hooper, D-Montpelier, agreed with Sears’ understanding of what the Legislature intended in its amendment to Rule 43.
“Now we’re talking about how can we do it better,” Hooper said, “whereas I thought we passed a law that said you can’t do it.”