- Courtesy Of Holly Pelczynski/Bennington Banner
- Erica Marthage
At their first debate in the Bennington County state's attorney's race, incumbent Erica Marthage and her former deputy, Christina Rainville, didn't shake hands, exchange pleasantries or make eye contact. From opposite ends of a table, they spent 90 minutes trading insults — some veiled, others not.
Toward the end of the debate, a middle-age man rose and asked about Rainville's 2015 departure from the state's attorney's office.
"We want to know why she left," he asked. "Did she leave, or did she get fired?"
Moderator Sean-Marie Oller, citing personnel confidentiality, prevented the candidates from answering. In an interview later, Rainville said that she was fired.
Neither of the candidates — both zealous prosecutors — has a reputation for embracing criminal justice reform.
Tough-on-crime Bennington County has at times locked up twice as many people per capita as the statewide average, as Seven Days first documented in 2016. Marthage's office was known for seeking long sentences and high bail amounts. The jurisdiction still doesn't have a drug treatment court — a tool most Vermont counties put in place several years ago to help addicts.
The American Civil Liberties Union of Vermont is investigating criminal justice practices in Bennington County after receiving complaints about overly aggressive prosecutions, racial bias from local cops and other issues, according to staff attorney Jay Diaz.
Seven Days spoke about the contest with five experienced Bennington County criminal defense attorneys who have frequent dealings with the state's attorney's office, most of whom were reluctant to go on the record in fear of jeopardizing future plea negotiations. They said little has changed in recent years and pointed the finger at Marthage, who was first elected in 2006.
And yet, those same people quietly say they will likely vote for Marthage in November. They are even more fearful of Rainville, who has her own reputation for overly aggressive tactics.
"I don't think Tina Rainville would be suited for the position," said David Silver, a partner at the Bennington firm BarrSternberg, who agreed to talk on the record. "She doesn't have good judgment at all. A prosecutor is supposed to be able to view things objectively on whether or not there is credible evidence that can support the charge. I can't tell you how many cases she brought that were eventually dismissed when she finally got around to being forced to consider the evidence, or reduced to misdemeanors."
Marthage won the Democratic primary in August, handily fending off a challenge from Dorset attorney Arnie Gottlieb, who promised to bring criminal justice reform to the county. Republicans fielded no candidates and gave Marthage enough write-in votes to hand her the GOP line, too. The total was 2,529 to 2,003.
Marthage was poised to coast to reelection when Rainville gathered signatures to run as an independent. Rainville lives in the Windsor County town of Chester and works for the Springfield law firm Ellis Boxer & Blake, mostly on civil cases. She owns a home in Manchester and said she will move there if elected.
Given Marthage's seemingly strong position, some have speculated that Rainville is running out of spite, seizing an opportunity to spend a few weeks bashing her nemesis to anyone who will listen.
"It has to be something more than just issues," said Gottlieb, who refuses to endorse either candidate. "It has to be about their past history."
In an interview, Rainville insisted she is in it to win it. She recently unveiled campaign initiatives including a "21-point plan" to combat the opioid crisis.
"This is not a personal vendetta by any means," Rainville said. "People in Bennington County need to know the truth of what's happening in the state's attorney's office."
Marthage did not respond to multiple requests for an interview.
But during the debate and in interviews with the Bennington Banner, Marthage has said her reputation for hard-line tactics is overblown. She has supported a local restorative justice program and reserves harsh sentences for only the most dangerous criminals, she said. She secured an endorsement earlier this year from Attorney General T.J. Donovan, a Democrat who touts himself as a reformer. Donovan said that Marthage has "evolved and now seeks to balance the underlying causes of criminality while maintaining the public safety."
"I'm doing a great job for Bennington County," she said during the debate. "Most of my largest supporters over the years have been the parents and families of addicts I have helped."
Marthage, 48, spoke in unusually blunt terms about her difficult childhood as the youngest of five siblings in Manchester. Her father was an alcoholic who had trouble holding a job, and her mom worked as a chambermaid, she said.
"My parents were regularly choosing between food and the electric bill," she said. "I was not someone who ever dreamed of ever going to law school ... I knew I wanted to live a better life than how I grew up."
Marthage described herself as a troubled kid who missed 63 days of school one year. But she went on to graduate from the University of Vermont and the University of Connecticut School of Law. A mother of three, she was first elected state's attorney in 2006.
- Courtesy Of Christina Rainville
- Christina Rainville
Rainville, 56, grew up in northern New Jersey. She got her law degree from Northwestern University in 1988. She worked at a Philadelphia law firm and for the U.S. Securities and Exchange Commission before moving to Vermont in 2005. After a brief stint clerking at the state Defender General's Office, she went to work for Marthage in 2007. She specialized in prosecuting sex crimes.
Candidate Rainville has accused Marthage of laziness. She refers to herself as a "real prosecutor with real accomplishments" who handled serious felony cases for Marthage, including dozens before the Vermont Supreme Court and one that went all the way to the U.S. Supreme Court.
In that case, Rainville appealed a Vermont Supreme Court decision overturning a domestic assault conviction against Michael Brillon. The Vermont court said that Brillon's right to a speedy trial had been violated by repeated delays. But a 7-2 majority on the U.S. Supreme Court found that the prosecution was not to blame and ruled in favor of Rainville — and the State of Vermont. Ruth Bader Ginsburg wrote the opinion.
Back in Vermont, though, Rainville handled numerous felony cases that were dropped, pleaded out for minor convictions on the eve of trial or overturned on appeal, lawyers said.
For example, in April 2015, the Vermont Supreme Court reversed one of Rainville's convictions for lewd and lascivious conduct. She made assertions in her closing argument at trial that were not supported by evidence, the justices ruled, and asked jurors to put themselves in the victim's shoes. In legal circles, both are considered embarrassing, fundamental errors — posing the "shoes" question is known as violating the "golden rule," since it is a play for jurors' sympathy.
Rainville noted that Vermont's Professional Responsibility Board reviewed the case and cleared her of any wrongdoing.
But the case that haunts Rainville the most is one she handled before she moved to Vermont.
Rainville represented a Philadelphia man, Robert McFarlane, for a time after he was convicted of first-degree murder in 1994. McFarlane appealed and in 2011 got a hearing at which Rainville testified about her work on his behalf. U.S. District Court Judge Paul Diamond later wrote that she was "not credible," failed to understand the history of the case and basic rules of appeals, and "offered testimony that was often contradictory, incorrect, or demonstrably false." McFarlane's appeal was denied.
Rainville said that several weeks before Marthage fired her, she saw a person driving under the influence in Winhall. Rainville informed a Windham County prosecutor involved in the case that her past court appearance in Pennsylvania could potentially pose a problem.
"Because I was a witness, that opinion could be used by a lawyer to cross-examine me," Rainville said in an interview. "It was favorable to the defendant, and it needed to be disclosed."
She insisted that Marthage, along with most of the attorneys in the county, had already known about the Pennsylvania ruling. It's readily available online.
Nonetheless, Rainville said, when Marthage learned she had disclosed the ruling to the prosecutor, her boss fired her.
In the Bennington firehouse last week, debate moderators managed to keep that topic off-limits. But little else was.
Marthage said she tries to keep drug addicts and the mentally ill out of jail, and she works to expunge some defendants' records to make it easier for them to find work and rebuild their lives.
Rainville disputed that. She said that under Marthage's watch, prosecutors filed felony charges against young people with little thought to the lifelong burdens that convictions bring.
She cited a case in which Marthage charged an 18-year-old man with sexual assault for having sex with a 14-year-old girl. He was sentenced to serve up to five years in prison and will be on the sex offender registry for life, Rainville said.
"There is a long history in this office," Rainville said. "Mrs. Marthage used to say, 'Make him take a felony so he can't work again.'"
Marthage shook her head. "What Mrs. Rainville just said isn't true," she responded.
In her closing debate statement, Marthage argued that it was important for a state's attorney to have "integrity" and that Rainville consistently "manipulated facts and twisted the law."
As the forum came to an end, the candidates walked in opposite directions toward their supporters — and away from each other.