The Vermont Attorney General’s Office has resolved a 2019 sexual misconduct case against a Windsor County lawyer by referring him to a pretrial diversion program — a decision that the local state’s attorney opposed and that has raised the concerns of the state-affiliated crime victim center.
Melvin Fink is accused of assaulting a woman in 2017, when he met with her at her home in the town of Peru to discuss a case involving her family. Fink, now 80, was originally charged with lewd and lascivious conduct, a felony that carries a penalty of up to five years in prison.
He pleaded not guilty and was set for a jury trial this month in Bennington Superior criminal court. His jury selection was canceled shortly before it was scheduled to begin last Tuesday when Assistant Attorney General Paul Barkus and defense attorney David Sleigh presented Judge Kerry Ann McDonald-Cady with a resolution to the case.
The attorney general’s office downgraded Fink’s charge to a misdemeanor — prohibited conduct of open and gross lewdness (first offense) — and referred him to a court diversion program in Rutland County.
As part of the resolution agreement, Fink admitted in court that he’d inappropriately touched Jeanne Howell, 59, at her house in July 2017 while he was advising her family on their court case.
“I understand that this conduct violated the norms that Ms. Howell would have expected to govern a professional meeting,” Fink said. “I’m truly sorry and apologize for any emotional distress that Ms. Howell has suffered as a result of my unwanted conduct.”
But that statement wasn’t an admission of a criminal offense. Court diversion allows qualified defendants to resolve their cases through a community justice program rather than in court. The program — which could involve counseling or treatment, writing letters of apology or paying restitution — enables participants to avoid a criminal conviction.
If Fink completes diversion, the details of which are confidential, his sexual misconduct charge will be purged from his record. Otherwise, the state could recharge Fink, since he has waived the statute of limitations in the case.
Bennington County State’s Attorney Erica Marthage had opposed Fink’s referral to diversion, telling the court on Nov. 6 he did not qualify under state law due to the nature of his offense. She said that would remain the case even if the attorney general’s office reduced his felony charge to a misdemeanor charge of prohibited conduct.
“It’s really a sexual assault. It doesn’t matter what label you put on it,” Marthage said in an interview after the the judge had accepted Fink’s resolution agreement. Although the state’s attorney had told the court she had concurrent jurisdiction over criminal conduct in the county, McDonald-Cady said Marthage didn’t have standing to oppose Fink’s diversion referral.
Marthage also argued that giving Fink diversion “would not serve the ends of justice.” She said she is concerned the deal would affirm some victims’ impression that the criminal justice system is skewed toward people with means and social standing.
“A lot of the cases that we’ve dealt with over the years that involve privileged white defendants, that’s how they end up — resolving cases and working them out. They just wear the victims down,” Marthage said. “I’m worried that another victim is going to read this and be like, ‘See, I’m definitely not reporting anything.’”
The victim in Fink’s case, Jeanne Howell, told VTDigger she has been determined to go to trial since 2017, and believes she would have prevailed. Although Howell wanted Fink to be found guilty in court, she said she had a greater desire to see him publicly acknowledge his misconduct. She said diversion was the only type of deal in which Fink would agree to make an admission.
“There was no way he was going to get in the trial and on the stand and say, ‘I confess to this.’ He would never do that,” she said.
(VTDigger does not typically identify people who have alleged sexual abuse, but Howell granted permission to publish her name.)
Howell said she hopes the outcome of the case will prevent Fink from victimizing another person. But the possibility of getting justice for herself and her family is “gone,” she said, because of the nearly five-year wait to resolve the case.
“The important thing is that Mr. Fink does not do this to anyone else,” Howell said, echoing a statement she gave in court last Tuesday, which was part of the resolution she sought.
“He was too calculated, too controlling, too aggressive, very narcissistic,” she’d said from the stand. “He was way too comfortable with his approach, as if he had done it before. I can only wonder.”
In her interview, Howell said she didn’t appreciate the Bennington County state’s attorney’s opposition to Fink’s diversion. She said Marthage had never spoken to her, didn’t know the details of her complaint and hadn’t been involved in the negotiations. “There was no communication with me,” Howell said. “It was out of nowhere.”
Jennifer Poehlmann, director of the state-affiliated Vermont Center for Crime Victim Services, said she is pleased that Howell felt she was actively involved in the case resolution. At the same time, Poehlmann expressed concern that diversion would not fully address the victim’s needs and broader public safety issues because cases like this don’t normally go to diversion.
Poehlmann, an attorney, also believes Fink’s misdemeanor charge does not qualify for diversion or expungement.
“The Legislature made it clear that communities should know, law enforcement should know, courts should know when behavior like this is taking place, and there should be a record,” she said. “I think that there are wrinkles here that have been raised for the first time, to my knowledge.”
The attorney general’s office has defended its decision to refer Fink to diversion, saying it was in accordance with existing rules.
“Our office determined that under the Diversion policies, coupled with the victim’s input about what she wanted, the Diversion program could accept this case,” Lauren Jandl, Attorney General Charity Clark’s chief of staff, said in an email.
Jandl said her office had been ready to take the case to trial, and diversion “would never have been offered” without the victim’s full support.
Fink’s attorney, David Sleigh, didn’t respond to messages requesting a comment.
Karen Tronsgard-Scott, director of the Vermont Network Against Domestic and Sexual Violence, considers the prosecution to have reached a positive outcome because the victim’s wishes were heard.
“It’s easy, I think, for us looking from the outside in to say, ‘This is what I think should happen,” she said, “But really what’s important is that we listen to what that victim wants, because too often that doesn’t happen, and then the victim gets nothing.”
The Rutland County Restorative Justice Center has agreed to oversee Fink’s diversion following the objection from Marthage, who retains final discretion over referrals to the Bennington County diversion program.
Meanwhile, the Professional Responsibility Board has a pending administrative case against Fink that is related to Howell’s complaint. The board began investigating him in 2019 after he was criminally charged. The administrative case remained on hold while Fink’s prosecution was ongoing.
Fink remains a practicing attorney with an office in Ludlow, though his law license was suspended for 30 days earlier this year due to a separate case of professional misconduct.
Howell said she plans to be closely involved in the process of crafting Fink’s diversion contract, where she’d like him to make more public admissions of misconduct.
“If he doesn’t complete it the way it should be done, we are going to trial,” she said.
Correction: Due to an editing error, an earlier version of this story mischaracterized the nature of the charges Fink faced.
