The state Senate Judiciary Committee voted unanimously Friday in favor of confirming a former Orleans County prosecutor who faced unusual opposition in her nomination to the Vermont Superior Court.
The 5-0 vote came immediately after Judge Jennifer Barrett came before the panel to defend her record. Judicial nominations, which must receive the consent of the state Senate, are usually speedy, pro-forma affairs, but Barrett’s testimony had been delayed by the number of witnesses — for and against her — who had come before the panel.
Barrett served as the Orleans County state’s attorney from 2015 until last August, when Gov. Phil Scott appointed her to the bench. Because the Legislature was not in session at the time, Barrett has already begun her service as a judge, presiding over Windham Family Court in Brattleboro.
Chief among the arguments made against Barrett — largely by defense attorneys — was that she was overly aggressive as a prosecutor and unlikely to handle cases in an impartial manner. They pointed to her record as a state’s attorney in the Northeast Kingdom but also, more controversially, to her public defense of her husband, a former state trooper fired for a pattern of improper searches, usually of Black men.
Barrett made no apologies for her prosecutorial style on Friday and argued that while she had prosecuted cases her predecessor would have passed on, that’s precisely what she was elected to do.
“I ran against three other men who were within the community, including the incumbent, and I ran on the position that I was going to hold people accountable for their actions in the community,” she told the Senate panel. “And I did that.”
But Barrett also said that she had increased her use of diversion and restorative justice over time and that, in 2022, a quarter of all misdemeanors filed in Orleans County were sent to diversion.
As for her husband, Lewis Hatch, who was at the center of a Vermont Supreme Court case in which the court found in favor of a Black man Hatch had pulled over, Barrett said that it was unfair to hold her accountable for his conduct.
In one of the “least diverse areas of the state,” Barrett said, she’d worked hard to increase the diversity of her office.
“I’ve worked really hard to show who I am, and my accomplishments really speak for themselves,” Barrett told lawmakers on Friday. “And I’d ask the committee to look at my accomplishments, what I’ve done for the people of my community — for other women and minorities that I’ve worked with and judge me based on that.”
Among the allegations leveled against Barrett was the claim that she had allowed a former employee of the state’s attorney’s office to carry a weapon into the courthouse, which is a crime in Vermont. The Newport courthouse was closed for days last fall after the employee was found with a loaded gun.
Barrett had already relocated to Windham County months before the incident. But the man would later tell investigators that Barrett had been the one to give him the greenlight during her tenure as the county’s top prosecutor.
She spoke to the incident directly on Friday, denying to lawmakers that she had ever given him such permission. But she also expressed some sympathy for the man and began her testimony on the matter by noting that she and her employees regularly received threats against their life.
“We received letters with explicit details about my child — where he went to school, his age. I received explicit death threats. So did my employees. We dealt with people who were angry at us and angry about the work that we were doing,” she said.
Barrett told senators that the employee had broached the subject of carrying a weapon once, after a member of the public had come to the courthouse upset and behaving in a threatening manner.
“In passing, he said, ‘Could I carry a firearm to protect the office?’ And I said to him, ‘I don’t have the authority to allow you to carry,’” Barrett recalled. “And that was the end of the conversation.”
It was the only time she discussed the subject with him, Barrett said, adding that she had never seen that particular employee — or any other employee — come to work with a firearm, and that no other employee had raised concerns with her about the man coming to the courthouse armed.
A Rutland defense attorney, Ember Tilton, testified last Friday that Barrett had filed a professional ethics complaint against him as a “personal attack,” and that the complaint was later found to have no merit. Barrett told lawmakers that she had never filed an ethics complaint against Tilton, although she had once reached out to her supervising attorney to express concern about certain interactions they had had.
Sen. Nader Hashim, D-Windham, a former state trooper who often speaks out about racism in law enforcement, said at the conclusion of Barrett’s testimony that he had been inundated with letters about her nomination — the “vast majority” of which had been supportive.
“I appreciate some of the concerns that were raised, but it was also, to be frank, a little frustrating to get testimony that clearly either would be considered hearsay or irrelevant,” said Hashim, the committee’s vice chair. “Or things that would create unfair prejudice. For example, the issue regarding her husband — I don’t find that it makes sense to transfer responsibility on to the judge for his actions.”
Senate President Pro Tempore Phil Baruth, D/P-Chittenden Central, who serves on the committee, thanked Barrett for submitting to a lengthier process than is typical.
“I’m sorry that it stretched over three hearings. But number two, I think that’s been a good thing. I think it’s allowed us to hear the range of commentary that was out there and vet it and come to feel comfortable about the decisions we’re making,” he said.
The pro tem added that it was his sense, after listening to testimony, that Barrett “absolutely” took bias and firearms seriously. And he suggested that while he might have preferred a different prosecutorial philosophy in a nominee, it would not be appropriate for him to block her confirmation for this reason.
“In terms of people characterizing your work as a prosecutor as overly aggressive, or as a judge as overly aggressive — if I myself were on the bench or if I myself were nominating, I might do different things. But that’s not my role here,” he said.
Sen. Robert Norris, R-Franklin, a former sheriff, complimented the judge for remaining “steadfast” in her demeanor and approach despite the volley of criticism.
Sen. Tanya Vyhovsky, P/D-Chittenden Central, another committee member, said that it was troubling to her that judicial nominations usually received so little scrutiny from the Senate.
“I think it is actually a good thing that we fully fleshed out and had a real conversation. And we should do that in the future. Because it is a serious position that can do immense harm,” she said.
Vyhovsky added that she, too, had received “many, many” letters about Barrett’s nomination, and some had raised concerns “about impartiality and an alignment with a system that, in my opinion, should be moving towards reparation and restoration rather than retribution.”
“That said, most of my concern has been answered and what remains is somewhat nebulous and so I will vote yes,” Vyhovsky said. “But I hope that there is an openness to growing with the system and continuing to challenge places that are simply not right.”
Barrett’s confirmation now heads to the full Senate for a final vote.
