Woodstock — Lawyers with the Attorney General’s Office sought a mistrial Monday morning in a lawsuit against the state’s Department of Children and Families. The request came after a VTDigger story published Sunday quoting lawyers who alleged the AG’s office illegally vetted potential jurors.
Judge Robert Gerety quickly dismissed the motion, provided that none of the jurors in the case had read or heard about the report, which none said they had.
VTDigger reported that the state’s lawyers did what amounted to “background checks” on all 80 potential jurors in the case to learn about their histories with DCF, without the jurors’ knowledge or consent, and then used that information to dismiss any potential jurors who had histories with the department.
The assistant attorneys general on the case, David Groff and David McLean, argued that the plaintiff’s lawyers had alerted VTDigger to the story “for the very purpose of disclosing this information because it would offend the jurors who are serving on the case.”
They argued that if two or more jurors had heard about the article, that would be sufficient cause for a mistrial, so that a new jury could be drawn. If just one juror heard about the story, the lawyers suggested that individual could be dismissed for cause.
The plaintiff’s lawyer cited several cases to support that the trial must go on, regardless of the publicity, including cases where the media accounts seen by jurors were actually about the substance of the cases, not about a “collateral matter” like the VTDigger story was.
The lawsuit involves a case of child abuse in Brattleboro and is being heard in Windsor County court in Woodstock.
The Attorney General’s Office accessed information about unsubstantiated reports of child abuse and neglect involving potential jurors.
The plaintiffs sued the state for failing to protect their two grandchildren from frequent parental abuse during a four-year stretch when they were 7 to 12 years old.
VTDigger is underwritten by:
Gerety debated whether to ask the jurors about the VTDigger story directly, or to ask a more general question of whether they’d seen any publicity about the case, as he has done each time the jury returned to the courtroom throughout the case — ultimately deciding the latter would be sufficient.
Gerety said he explained to this jury, as he does all juries, how important it is that jurors decide the case based only on the information they receive in court, and to not access any information outside of that. He emphasized how he regularly tells juries that even if they did access that kind of information, they should feel safe and welcome to tell him what they saw, to ensure the fairness of the case.
“The court consistently, religiously communicated with the jury every single time they came into this room after having been absent, and made inquiry of the jury whether they received any information concerning the case, from any source outside this court … and in every case, there’s been no hands raised,” Gerety said.
He said he wouldn’t weigh in on the allegation of professional misconduct by the plaintiff’s counsel.
“That’s for the Bar Council to consider, not the judge, at this point,” Gerety said. “In my view, the defendant has not shown that there’s been any prejudice of any kind yet, not to say that that might not come.”
But he told the assistant attorneys general not to “hold their breath” for that to change. “If it does, that’s a whole other kettle of fish, and we’ll have to think it through.”
Stay on top of all of Vermont's criminal justice news. Sign up here to get a weekly email with all of VTDigger's reporting on courts and crime.