“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 chair of the oversight panel and chair 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 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 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.
Rule 43 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 July 1, the judiciary has conducted video conference hearings only for court proceedings governed by a different provision, Rule 5.
Rule 5, 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. Those who want an immediate arraignment but don’t consent to video conferencing may have to wait a day or more for an in-person hearing.
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.”
Sears suggested the problem had arisen “because we put in the term ‘unless the defendant consents.’”
“There’s a benefit now,” Sears said, “under this Rule 5-Rule 43 construct, to doing the video arraignment that was not there on June 30.”
Sears asked Greason if defendants might be encouraged to consent to a video arraignment during their so-called Rule 5 video hearings, because that would mean they could be released sooner.
Grearson said he couldn’t know without having spoken to the defendants. However, he added later in the questioning that he expected “some of them would agree to that — sure, that’s human nature.”
In an interview, Grearson expanded on his answer. He said defendants typically are released after a Rule 5 proceeding by video, regardless of whether they are arraigned immediately or not — meaning there’s no incentive to consent to video arraignment.
Valerio raised another concern in an interview after the Justice Oversight meeting.
In addition to confidentiality issues, Valerio said he found the idea dystopian that people would have conversations via video conference that could determine whether they end up in prison.
“We can’t be denying people liberty over a remote video camera where all you can see is their eyeballs,” he said. “That’s a Max Headroom sort of foreign arraignment.”
Valerio also said he thought the judiciary’s interpretation of the new law has been disingenuous.
“To me, this is the court blatantly thumbing their nose at the Legislature,” he said. “They knew exactly what was intended and what was going on.”
The oversight committee will write a letter asking the Judicial Rules Committee to weigh in on the judiciary’s interpretation of the new law.
If the use of video still continues, Valerio said his office wouldn’t give up the fight.
“There’s other things we can do if the court persists,” he said. “Going back to the Legislature and clearing this up once and for all — if the language wasn’t clear enough for them that they can’t do it for Rule 5, then we’ll (amend the statute) for Rule 5, too.”