Judge Gregory Rainville presiding over a hearing in Chittenden County Superior Court on Monday
Updated March 17, 2020
The wheels of justice turned Monday at the Edward J. Costello Courthouse in Burlington, though each rotation seemed squeakier than the last.
“Why am I here?” one defendant in Judge Gregory Rainville’s second-floor courtroom wondered aloud, after learning that the state prosecutor and her public defender would be appearing for her hearing by telephone. “That’s a waste of time.”
Minutes later, a public defenderwalked in and vented to court officers after a judge required her client in a different case to attend an uncontested hearing, even as coronavirus shuttered schools and public gatherings statewide.
“He's going to come in and contaminate all of us,” she said of her client, before she rushed off to a different proceeding.
Shortly after that, deputy state’s attorney Andrew McFarlin and defense attorney Evan Barquist phoned in to a status hearing and made small talk over speakerphone while they waited for the judge to enter a courtroom that neither could see.
“This is a little bizarre,” one of them said.
These were the last gasps inside a state judiciary system that was clinging to normalcy as the COVID-19 outbreak spread. By afternoon’s end, members of the Vermont Supreme Court declared a “judicial emergency” and halted most hearings in state courts until at least April 15.
The change followed last Friday's decision to postpone jury trials and a similar move Monday morning by Vermont’s federal judiciary to indefinitely postpone most of its in-person hearings.
The federal directive from Chief Judge Geoffrey Crawford makes exceptions for initial appearances, detention hearings, and issuances of search and arrest warrants, which will continue.
Such decisions run into constitutional mandates, including defendants' right to a speedy trial. In his memo, Crawford wrote that the delays wouldn’t count toward that clock, as the court “specifically finds that the ends of justice served by ordering the postponements outweigh the best interest of the public and any defendant's right to a speedy trial.”
On Sunday, Vermont’s state’s attorneys held a conference call in which they became “unified” in their approach to not appear in-person for court hearings, Washington County State’s Attorney Rory Thibault said. He described it as a matter of public health, given that hundreds of people pass through Vermont courthouses each day. And on Monday morning, Chittenden County State’s Attorney Sarah George and her counterparts in some other counties filed motions seeking permission for their deputy state's attorneys to appear for all cases by phone.
Defense attorneys were somewhat less eager to alter the pace of due process. “Constitutional rights don’t go away because there is a public health crisis,” Defender General Matthew Valerio said.
But state’s attorneys were already signaling a willingness to cut deals on pending cases, especially when defendants were being held in jail pending trial.
“I would expect this emergency situation is going to prompt a little more creativity as to how we can resolve cases without compromising public safety,” Thibault said.
The changes in the judiciary could provide some relief to Vermont’s prisons, where inmate advocates have been voicing increasing concern that the system is ill-equipped to prevent and respond to an outbreak.
Valerio said it’s “probably inevitable” that someone inside the corrections system will contract the virus, at which point the jails could become “cruise ship”-like environments, where the virus spreads quickly within confined communities.
On Tuesday, Chittenden County's George joined 30 other progressive prosecutors from around the country in a joint statement calling for "dramatic" decarceration and other measures to reduce the risk of prison outbreaks. The letter calls for cite-and-release policies for most charges, releasing detainees who are held for lack of bail, and immediately releasing inmates who are elderly, vulnerable or within six months of completing their sentences.
The letter further calls for suspending new immigration detentions and better protections for incarcerated people. "An outbreak of the coronavirus in these custodial facilities would not only move fast, it would potentially be catastrophic," the statement read.
Tom Dalton, executive director of Vermonters for Criminal Justice Reform, said inmates should have the same opportunity as everyone else to follow state and federal health officials’ recommendations around sanitation and social distancing. Dalton said he’s heard from inmates in recent days who reported that some sinks were missing soap and paper towels, and noted that the DOC hasn’t stocked hand sanitizers that contain alcohol, contrary to health officials’ guidelines.
The department has secured stockpiles of cleaning, food and medical supplies, Department of Corrections interim commissioner Jim Baker said, and is “experimenting” with alcohol-based hand sanitizer. He said he verified last Friday with other DOC officials that each prison had enough soap on hand. The department is working through “some challenges” in obtaining personal protective equipment for staffers, he said.
Baker’s department has also suspended in-person visitations, replacing them with video visitations that cost $6.25 for every 25 minutes, though the vendor has offered one free weekly session per inmate. And in February, DOC added medical screening questions for new prisoners.
Advocates say the system must do more. The Vermont Prisoner’s Rights Office, which is part of Valerio’s office, sent a letter to Baker on Friday urging him to use the department's furlough authority to release “as many inmates as possible.”
“Fewer people in prison means more people able to voluntarily practice social distancing and keep themselves and their communities safer,” the letter, signed by supervising attorney Emily Tredeau, read.
On Monday morning, the Defender General’s office circulated court motion templates among defense counsel that could be used to argue the prisons’ inadequate preparations amount to cruel and unusual punishment. Included in the template is an affidavit prepared by a Yale University physician who testified that Vermont DOC’s response as of March 12 was “entirely inadequate” to protect staff and inmates.
“Without additional steps, it is likely that people in DOC custody who are infected with COVID-19 will experience high rates of serious illness, including death,” the affidavit by assistant professor of medicine Jaimie Meyer said.
Meyer’s opinion cited inadequate screening, prevention techniques and treatment capacity. It also referenced an email from DOC's director of nursing stating that the department didn't have ventilators available for very sick inmates.
Baker strenuously disputed the Yale physician’s conclusions, saying in an interview Monday that it appears to rely on incomplete information. He said the department’s decision to begin screening visitors in February evidenced an aggressive approach. The concerns about treatment capacity, he said, could apply to any hospital in the country.
“We've never seen anything like this. I’m very concerned about the population and the staff, and we're doing everything we can to adjust on a daily basis,” he said.
The department isn’t currently contemplating use of furlough to reduce the prison population, Baker said, but “will at some point have the conversation.”
In the meantime, Dalton said prison staff and incoming and outgoing inmates should be tested for the virus.
"I don't think there's any doubt that correctional facilities are high-risk environments right now," he said.
No Vermont inmates had been tested for the virus as of Monday afternoon, according to Baker.