Laura Wilson of the Young & Wilson law firm in Lyndonville is the public defender attorney for Essex County, and a practicing trial attorney. She is a resident of Guildhall.
No person accused of a crime should have to choose between a speedy, fair trial and his or her health. But at least here in much of the Northeast Kingdom, that is the awful choice that defendants (as well as trial judges, attorneys, jurors, court clerks and security officers) now face.
In March 2020, the judiciary declared an emergency, closing courts to the public and suspending all but essential hearings. Today, many court proceedings have inched back to near-normalcy, relying in large part on a Zoom-like platform.
But what about criminal jury trials? You can’t conduct a criminal jury trial by videoconference. People charged with crimes have a constitutional right to directly confront their accusers and other witnesses the state brings against them.
In Vermont, we’ve made precious few inroads on resuming our criminal jury trials. Here in the NEK, we lag further behind. In Caledonia County, there was no attempt to resume trials until June 2021 and the first trial to reach a verdict was last week. No trials have taken place at all in Orleans or Essex counties. (Grand Isle or Windham, either).
For defendants living their lives in the community, it’s not ideal, but not the end of the world. For incarcerated defendants, however — such as those held in pretrial detention — it’s been nothing short of a nightmare. Those accused persons are presumed innocent and have not been convicted. Yet many have languished in jail for 18 months or longer.
Prior to the pandemic, the courts had already been struggling to keep up with defendants’ rights to speedy trial, but in March 2020, that right, in practical terms, went straight down the proverbial drain.
We in the local bar understand that the judiciary is considering holding trials for incarcerated Orleans County defendants, but transferring those trials to Caledonia or Lamoille counties. (Trials for non-incarcerated Orleans County defendants remain an open question, with no clear plan for resumption anywhere.)
Transfers of venue mean that those incarcerated defendants will not get a jury of their peers. The Orleans County judge, prosecutor, defense attorneys and witnesses will have to travel to Caledonia or Lamoille. As for Essex County, the plan is to conduct all jury trials in Caledonia County, with Caledonia jurors.
On the other hand, if jury trials were to be held in those home Orleans and Essex courthouses as they currently exist, jurors and all involved may be at risk of contracting the virus.
While our local presiding trial court judges are doing their best, it’s troubling that the Vermont judiciary has chosen not to explore ways to avoid this choice between constitutional rights and health here in Orleans and Essex.
One obvious answer to the problem of small or ill-equipped courthouses is either to spend the money to upgrade them or to identify and secure alternative, temporary buildings more suitable, within the counties.
Temporarily moving court proceedings to nearby buildings isn’t without precedent and the judiciary should seriously explore it.
One of my veteran defense attorney colleagues can tell you how, back in the day, the Caledonia court moved temporarily to a space at the Fairbanks Scale factory. Bennington County has a history of “portable courts.” And more recently, in 2015, the Lamoille County court moved to a vacant hotel in Morrisville while the courthouse underwent renovations — surely a less compelling reason than a global and potentially deadly pandemic. Finally, many of us are now familiar with the images of court being conducted outdoors in San Francisco during the 1918 flu epidemic.
Shifting court operations would surely involve logistical and financial challenges, but so what? Haven’t large sums of CARES Act money flowed to the judiciary? Isn’t it worth it to protect constitutional liberties — and protect health?
My defense and prosecutor attorney colleagues and I, who live and work here in Orleans/Essex, can provide lists of alternative spaces in our counties. But despite our suggestions and outright pleas, the judiciary so far appears reluctant to even explore that route.
Must we give up, and be forced to choose between constitutional safeguards and our health? Rather than resort to the all-too easy solution of abandoning Orleans/Essex counties and — while adding to the already overburdened Caledonia court — why not keep our court proceedings local, using empty but functional buildings?
Having criminal trials locally in those alternative spaces would build on local knowledge and relationships, generate the excitement and suspense of jury trials, and host vibrant sites of democracy and justice. Let’s not allow “justice delayed” to become the Vermont way — in any corner of our state.
