A Superior Court judge dismissed a criminal case on Tuesday on the grounds that Orleans County prosecutors — including newly appointed Judge Jennifer Barrett — failed to disclose crucial evidence.
Judge Lisa Warren of the Orleans County Superior criminal court reversed a conviction in the case prosecuted by Barrett, who was serving as Orleans County state’s attorney and is now a Superior Court judge in Windham County. Warren described the failure to disclose evidence as “inexcusable” and part of a “pattern of neglect.”
David Vaz, of Springfield, Massachusetts, was convicted by a jury last summer of aggravated assault, kidnapping and unlawful restraint stemming from a 2017 incident in Lowell.
Vaz was due for sentencing in January. His attorney, Joshua Stern, said he received documents shortly before then from the Orleans County State’s Attorney’s Office, now led by Farzana Leyva.
Leyva’s office told Stern that prosecutors thought the documents had already been disclosed but shared them “out of an abundance of caution,” Stern said.
The documents were probable cause affidavits for a separate criminal case against Damion Daniels, a prominent witness in the trial against Vaz, who has been jailed since 2018. According to Warren’s decision, those affidavits included evidence that Daniels made false statements to police. Stern said that information could have been used during trial to discount Daniels’ testimony.
But Stern and Vaz’s prior attorney, Zachery Weight, reviewed the case and found no evidence that Barrett disclosed the affidavits.
Barrett began serving as Orleans County state’s attorney in 2015 and was appointed as a Superior Court judge by Gov. Phil Scott in August 2022. She left the state’s attorney’s office after the appointment.
According to Warren’s decision, Barrett and Deputy State’s Attorney Michael Cricchi tried Vaz’s case before a jury.
“The disclosure should have been made while (Barrett) was the lead attorney on the case,” Stern said.
After receiving the documents from Leyva’s office in January, Stern filed a motion to dismiss. Warren granted the request on Tuesday.
“The discovery violation in this case is clear, serious, and inexcusable,” Warren wrote in the decision. “It is not an isolated incident, but rather appears to be a pattern of neglect in discovery practices, which has continued since the late disclosure in the instant case.”
In an email Wednesday afternoon, Leyva said she took the matter “extremely seriously and (is) reviewing the facts.” She declined further comment on the case, citing the pending litigation.
In response to the judge’s assertion of “a pattern of neglect,” Leyva wrote that she was “unaware of any systemic discovery violations cited by the court.”
Barrett could not be reached for comment on Wednesday. Messages left with the Windham family court and at two email addresses for her were not returned.
Warren wrote that her decision “is not meant to undercut the accuracy of the jury’s verdict, which may well have been correct in all respects. However, the court must ensure that all defendants receive due process, and the State’s discovery failures have hindered due process in this case.”
In an interview, Stern called the failure to disclose documents “incredibly serious conduct.”
“I think that a defendant’s right to information that is exculpatory or information that is impeaching with respect to state witnesses is an incredibly important right,” he said.
Because the Legislature was not in session at the time, Barrett began serving as a judge immediately following Scott’s appointment last summer. But she wasn’t confirmed until last month — and only following a lengthy debate that is atypical for judicial confirmations.
At hearings of the Senate Judiciary Committee, several defense attorneys spoke against Barrett’s confirmation, with some arguing that she had a history of overzealous prosecution that suggested she would be unfair as a judge.
Others raised concerns about Barrett’s approach to prosecution and the impact on Vermonters of color, especially Black Vermonters.
Vaz is described as a Black man in court records from his trial.
Sen. Kesha Ram Hinsdale, D/P-Chittenden Southeast, said during a debate on the Senate floor that she took issue with Barrett’s aggressive style and its impact on people of color, such as herself.
“Black Vermonters do feel really unheard in the decision that we’re about to make,” Ram Hinsdale said, speaking ahead of Barrett’s confirmation vote.
Senate Minority Leader Randy Brock, R-Franklin, who is Black, objected to that notion, saying there is “no such thing as Black Vermonters who speak with a single voice.” He voiced his support for Barrett’s confirmation.
Some also took issue with Barrett’s support of her husband, Lewis Hatch, a former Vermont State Police trooper who was fired after conducting numerous drug searches without justification. Hatch’s stop of a Black man, Gregory Zullo, rose to the Vermont Supreme Court. The state was held responsible for an unreasonable search and seizure.
One of the defense attorneys who argued against Barrett’s confirmation, Kelly Green, said she was troubled by the revelations included in Warren’s ruling on Tuesday. Among the key concerns raised during Barrett’s confirmation hearings was “her track record with respect to pursuing equity,” Green said in an interview on Wednesday. “So when I saw this decision, I was pretty depressed.”
Green also pointed out one of Vermont’s rules of professional conduct for attorneys, which says that a prosecutor shall “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.”
Vaz remains jailed at Northern State Correctional Facility in Newport. On Wednesday, Cricchi, the deputy state’s attorney, filed a motion to pause action on the case, citing a pending appeal of Warren’s decision. In response, Stern argued that Warren’s ruling should take effect immediately.
“It’s deeply troubling to me that he was held without any conviction for almost five years to begin with, so I think he’s long overdue for being released,” Stern said.