Defense attorney says court reopening has been too slow, seeks to toss 30 criminal cases

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A defense attorney in the Northeast Kingdom is calling on a judge to throw out criminal charges against more than 30 clients whose cases have been pending since before the Covid-19 pandemic, claiming their right to a speedy trial has been violated.

David Sleigh, a St. Johnsbury lawyer, recently submitted filings in Orleans County Superior criminal court in Newport, laying out his argument for dropping the charges against his clients. The charges range from excessive speeding to aggravated sexual assault.

The charges should be dismissed, Sleigh argued, because even though Gov. Phil Scott on June 15 lifted emergency restrictions that helped prevent the spread of Covid-19, some courts in Vermont are still closed for jury trials and in-person hearings.

Relying “entirely on the recommendations” of Dr. Erin Bromage, Sleigh wrote, the judiciary has determined that it is not safe to start jury trials in six counties.

“Of particular consequence to the instant defendant,” Sleigh wrote in a filing on one of the cases, “Orleans County has announced that it will not be resuming in-person hearings or criminal trials due to no or insufficient HVAC ventilation within its courthouses, and has failed to provide a detailed plan regarding the resumption of proceedings.”

Sleigh, in the filings and in an interview Friday, questioned whether the judiciary should be relying on Bromage’s recommendations on Covid-19. Bromage is an associate professor of biology at the University of Massachusetts-Dartmouth.

The defense attorney included a footnote in his filing — a link to a website he said “purported” to be Bromage’s blog, titled, “ERIN BROMAGE: COVID-19 MUSINGS.” On that site, in a section labeled “What you need to know upfront,” is a set of bullet points, including one reading, “I am not claiming to be an expert in coronaviruses, medicine, or preparedness.”

Bromage could not be reached immediately Friday for comment.

Sleigh said his clients’ cases were all brought before the governor issued the state of emergency declaration in March 2020. He said two cases date back to 2016.

“The vast majority of these defendants filed speedy trial demands; many of them filed multiple speedy trial demands,” Sleigh’s filing stated. “No delays in trying these cases have been caused by the defendants.”

He said some jurisdictions have moved proceedings to other counties — for example, the Windham County court is hosting Windsor County jury trials.

“As near as I can figure, Orleans County is the only one that has not been provided with some contingency or alternative venue for jury trials,” Sleigh said Friday. “I’m saying that is denying my clients’ fundamental rights.”

Orleans County State’s Attorney Jennifer Barrett said Friday that her office is “eager and ready” to resume jury trials, but “we have not received any information or communication from the judiciary about any specific plans to resume jury trials in Orleans County. But we have been making requests for that information. We believe the judiciary has an obligation to secure a safe place to do jury trials in Orleans County.”

Barrett said her office has also proposed alternative locations in Orleans County where jury trials could be held safely, but “we have not received any feedback on that” from the courts.

Orleans County is a rural location, and it’s important for defendants, victims and witnesses that trials take place within the county to ensure people can attend, Barrett said.

Barrett said she doesn’t believe the trial delays rise to the level of dismissing the cases.

“Ultimately, we want to get back to doing jury trials, too,” Barrett said. “We join in their request to start doing trials. We just disagree about the implications of them not having started quite yet.”

Brian Grearson, chief judge for Vermont’s Superior Courts, said Friday he couldn’t specifically address Sleigh’s filings but did say the judiciary has reviewed all courthouses in the state, including HVAC systems.

“Some of the courthouses that do not have HVAC systems, some of the smaller courthouses, have not been approved for full use by the court,” he said. The Orleans County criminal courthouse does not have a functioning HVAC system, so “the court has not approved that building for jury trials or in-person hearings.”

Grearson said he expects cases from Orleans County to be put on jury draw lists in the Washington County court in Barre and Caledonia County court in St. Johnsbury.

“I hope the next schedule draws in either one of those counties would include Orleans,” he said.

Vermont Defender General Matthew Valerio said he’s watching to see what happens with Sleigh’s filings.

“I think it depends on a case-by-case basis whether these motions are appropriate,” Valerio said Friday. “I’ll be interested to see how Sleigh does with that.”

Valerio said public defenders across the state have filed motions invoking speedy trial rights throughout the pandemic and have been shot down by judges.

One difference with Sleigh’s filings is that they were filed after the governor lifted the state of emergency.

“If Sleigh can get a different result and set some precedent,” Valerio said, “we’ll evaluate how that might impact our clients.”

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