Vermont Supreme Court justices heard the terms “dysfunctional,” “complicated” and “procedural morass” Wednesday as attorneys argued over whether to keep under wraps records related to dismissed sexual assault and kidnapping charges against an ex-St. Albans police officer.
The five members of the state’s highest court took the matter under advisement after a roughly 30-minute hearing in the appeal of a case brought by the Vermont Journalism Trust, the parent organization of VTDigger.
At the hearing, the justices frequently burst in with questions as attorneys tried to make their respective cases, at times delving deep into the many and complex rules and processes governing the public’s access to documents.
“Transparency is critical to our system of government, critical to our justice system,” Ron Shems, the attorney representing the news organization, told the justices.
“The state’s decision to suddenly drop a major prosecution shouldn’t be hidden behind these procedural machinations, procedural arguments,” added Shems, of the Montpelier firm Tarrant, Gillies & Shems.
On Dec. 31, 2020, the Vermont Attorney General’s Office dismissed criminal cases brought against former St. Albans police officer Zachary Pigeon. Since that time, there have been many motions filed, hearings held and rulings issued in other lower courts regarding access to documents in the case.
Pigeon and his father, Allen Pigeon, were facing criminal charges for allegedly breaking into a family member’s home in April 2020 and assaulting a woman. The younger Pigeon had been serving on the police force at the time and was off duty.
He was later charged with sexual assault against the same woman for alleged offenses spanning several years when the woman was a child.
The Attorney General’s Office brought the charges due to a conflict of interest involving the Franklin County State’s Attorney’s Office. But several months after filing the cases, the Attorney General’s Office announced in a New Year’s Eve press release that it was dropping the charges.
“The state provided notice that it cannot meet the elements of the charged crimes beyond a reasonable doubt at this time,” then-Attorney General TJ Donovan said in a statement at the time.
During the hearing Wednesday, the Pigeon name was not even mentioned and the written briefs from attorneys were sealed. The case title also did not name them, referring to them only as “A.P.” and “Z.P.”
Robert Kaplan, representing “A.P and Z.P.” argued that there was no process for granting the request to take back up the issue of sealing the records.
“The whole purpose of the sealing and expungement statute is to allow people to close an unfortunate chapter in their lives and move on,” he said.
Besides, Kaplan said, even if the Attorney General’s Office had objected to sealing the records at issue, there would have been no guarantee a judge would have gone along with that objection.
Justice Harold Eaton asked Shems, the attorney for the Vermont Journalism Trust, if he was suggesting that a court made a mistake in sealing the records.
Shems replied that wasn’t the case. He said he was “suggesting” that it was the Vermont Attorney General’s Office that made the mistake.
“But you want the court to correct it?” Eaton asked.
“Correct,” Shems replied. “That happens all the time on reconsideration: correct the mistake.”
The attorney added, “It’s that mistake that led to this procedural morass.”
VPR (now Vermont Public) and VTDigger had filed public records requests with the Vermont Attorney General’s Office shortly after the charges were dismissed seeking documents related to the investigation and the decision to dismiss the cases.
VTDigger had already mailed a check to cover $182 in costs that the Attorney General’s Office had requested be paid in order to obtain an initial batch of the documents. Though the money had already been sent, the Attorney General’s Office then notified VTDigger that the records had just been “sealed by order of the court.”
As a result, the documents the news organizations had been seeking had effectively disappeared, and the public records requests filed separately by VTDigger and VPR were wiped from an online index kept by the Attorney General’s Office that tracks the status of such requests.
According to state law, if a case is dismissed before trial, the court “shall” in the interest of justice seal the records within 60 days.
In a subsequent court filing, the Attorney General’s Office maintained that its criminal division was not aware of the news outlets’ pending records requests, filed in the civil division, at the time that the sealing process took place.
Eaton raised the issue during Wednesday’s hearing with Solicitor General Eleanor Spottswood of the Attorney General’s Office, who also presented arguments during the hearing.
“It’s been suggested that the Attorney General’s Office made a mistake in this case,” Eaton said to Spottswood. “Do you concede that?”
Spottswood replied that the office’s filings speak for themselves.
The justices did not indicate during the proceeding when a written decision would be issued, though typically it takes several months.