A former prosecutor appointed to the Vermont Superior Court is facing unusual opposition as the state Senate considers confirming her to the bench.
Gov. Phil Scott named then-Orleans County State’s Attorney Jennifer Barrett to the court last August, and lawmakers launched confirmation proceedings when they returned to Montpelier last month. But the Senate Judiciary Committee has since received at least four letters from attorneys taking issue with Barrett’s appointment. And, at a confirmation hearing Friday morning, two of them spoke out against the nominee, criticizing her character, her choices as a prosecutor and even the record of her husband, a former state trooper.
The pushback has slowed a confirmation process that is typically pro forma.
“To be totally honest, in my 30-plus years here, we have always confirmed the governor’s nominees for judges and magistrates,” said Sen. Dick Sears, D-Bennington, who chairs the committee, at Friday’s meeting.
Kelly Green, a criminal defense attorney from Randolph, told lawmakers she believed Barrett would be incapable of upholding the law or providing “a fair and equitable administration of justice.” Green criticized the high volume of criminal cases Barrett filed as a prosecutor. Orleans County had Vermont’s second-highest criminal filings per capita, according to state judiciary data from 2020.
“There is no reason for someone to fight tooth and nail to have a 2017 fish and game violation on the docket,” Green told the committee. “It just needs to go to diversion or go away.”
In her written testimony to the committee, Green criticized Barrett’s use of pretrial detention as “cavalier” and wrote, “She can cite to no tangible results that support her experiment in mass incarceration.”
Green, who works for the state Office of the Defender General, but who said she was speaking for herself, went further in an interview with VTDigger. “I don’t think she’s qualified to serve as a judge,” she said of Barrett.
Ember Tilton, a Rutland defense attorney, also testified against Barrett’s confirmation Friday, alleging that Barrett had filed professional ethics complaints against him as a “personal attack.” Those complaints were ultimately found to have no merit, Tilton told the committee.
“She doesn’t have the impartiality or thoughtfulness that we should see on the bench,” Tilton said in Friday’s meeting. “Her record doesn’t reflect it.”
Two other witnesses offered a vigorous defense of Barrett’s personal and professional record.
David Sleigh, a longtime defense attorney in Orleans County, called Barrett’s integrity “indisputable” and praised her as a “champion” for victims of domestic violence. He contested the other attorneys’ characterizations of Barrett’s time as state’s attorney and argued that she was an effective prosecutor who simply used the tools available to her under state law.
Farzana Leyva, the newly-appointed state’s attorney in Orleans County, also testified before lawmakers in support of her predecessor’s nomination, describing her as an advocate who “stands with minorities.” Leyva, who immigrated to Vermont from South Africa, recounted how Barrett stood up for her after another attorney ridiculed Leyva’s accent in court.
“She is someone who has fought for her immigrant attorneys, and has really stood up, and relentlessly did the right thing,” Leyva testified to the committee.
When Leyva’s son “experienced some racial bias” in school, Barrett was her first call, Leyva said. Barrett immediately sprung into action, Leyva told the committee, and came up with a plan to approach the superintendent and the Agency of Education.
The Senate Judiciary Committee received at least nine letters in support of Barrett’s nomination. One described a sexual assault case, before Barrett became a judge, in which Barrett gave a victim “the clothes off her back, as the victim only had access to her pajamas on this day.”
Barrett had been scheduled to speak in Friday’s meeting, but the committee adjourned after an hour of testimony so that members could report to the Senate floor and she was not able to respond immediately to the allegations. Lawmakers said they would resume the meeting — and hear from Barrett — in the coming days.
Gov. Phil Scott maintains his support for Barrett’s nomination, according to his press secretary, Jason Maulucci.
“The governor has full confidence in Judge Barrett,” Mauluccci said Thursday. “She’s done a good job in the several months that she’s already been in the role.”
Barrett served as the Orleans County state’s attorney from 2015 until last August, when she was appointed to the court. Because the Legislature was not in session at the time, Barrett began her service as a judge, presiding over Windham Family Court in Brattleboro.
Most of the letters opposing Barrett’s nomination expressed concerns about Barrett’s husband, former Vermont State Police Trooper Lewis Hatch.
Hatch was fired from the state police in 2016 after a history of carrying out searches — often of Black men — without legal justification, Seven Days reported. Hatch’s actions were at the center of Zullo v. Vermont, a case that made its way to the Vermont Supreme Court. The court found Hatch had violated a Black driver’s right against unlawful search and seizure.
While Green acknowledged that Barrett was not responsible for her husband’s actions, she criticized Barrett’s public response to his conduct.
“He was facing removal from his position for racist policing — ugly, racist policing,” Green told the committee. “Not implicit bias, but open, horrible, racist stops.”
Sleigh, the defense attorney who spoke in support of Barrett’s nomination, said he found it “disturbing” that anyone would question Barrett’s character based on her husband’s actions.
“It’s inappropriate, I think in any situation, to say because someone’s spouse has done something untoward, that the other spouse is responsible for the other’s actions,” Sleigh said. “And in this particular case, when you’re holding a woman responsible for her husband’s action, there’s at least a vague notion of sexism there.”
Green also alleged in her testimony to the committee that Barrett had allowed an employee to carry a gun in the Orleans County Courthouse while she was state’s attorney. (It is illegal to carry a firearm in a courthouse in Vermont.)
Green cited a report by the state Department of Buildings and General Services following an incident last November, in which a state’s attorney’s office employee brought a pistol and an extra magazine inside the courthouse. According to the report, it was “well known” that this employee carried a gun to work. The man who brought the gun told investigators that Barrett had granted him permission to do so.
The incident occurred months after Barrett had been appointed to the bench and relocated to Brattleboro.
In a brief interview after Friday’s hearing, Barrett told VTDigger she had never allowed any employee to carry a gun in the courthouse. Barrett declined to comment any further until she was able to testify before the committee.
Also speaking to VTDigger following Friday’s hearing, Leyva, the current Orleans County state’s attorney, likewise vigorously disputed allegations that Barrett had ever allowed any employee to have a gun at work, calling them “wholly inaccurate.”