Probation Precision

State v. Campbell, 2015 VT 50

By Elizabeth Kruska

Ah, probation conditions. Here we are for something like the eleventy-billionth case on probation conditions. OK, maybe there haven’t been that many. But there have been a lot, and this is another.

Gordon Campbell was charged with aggravated assault, sexual assault, and violation of conditions of release back in 2006. The thumbnail version of the facts is that Mr. Campbell drank at a bar in Burlington, and when he left, encountered a young man on the street who asked for directions and cocaine. Mr. Campbell offered him money for oral sex, and when the man said no, Mr. Campbell beat him up behind a restaurant. He pled to the charges, got sentenced once, filed a PCR which vacated the sentence, and then went back for a new plea and sentencing.

A pre-sentence investigation was done, and suggested several certain probation conditions, two of which are the subject of this particular appeal. There was some procedural confusion. The parties had a plea agreement, but Mr. Campbell objected to certain conditions. If a defendant objects to conditions being imposed, he or she has to do so at the time of sentencing, even if there is a so-called plea agreement in place. It’s a weird posture to agree but also to object. But, if you don’t object, and if there’s a problem later on, the court will say that the objection was waived and you’re stuck with what you’ve got. The opinion suggests that there was some discussion of this on the record as the hearing began.

First, the Department of Corrections wanted to include a condition that Mr. Campbell could be subject to polygraph testing, and that he would have to pay for it. Mr. Campbell objected, pointing out that if he couldn’t afford the testing, that it shouldn’t be the basis for a probation violation. Also, he pointed out that polygraph tests, by and large, aren’t admissible in court, and so it shouldn’t be able to be the basis for a violation.

The trial judge added language to say that Mr. Campbell’s inability to pay couldn’t constitute a violation. Also, during the sentencing hearing, the probation officer who wrote the PSI said that if something arose as a result of a polygraph, that DOC would use that information to sit down with Mr. Campbell and talk about what was going on and how to deal with any situation. The PO said they wouldn’t the polygraph results as the basis of a violation.

SCOV says this condition is fine. Justice Eaton, writing for the court, points out that even if a polygraph test result can’t be used as evidence, the test has plenty of other valuable uses. If used as a supervision tool to make sure someone is compliant with conditions of probation, that’s fine. He also points out that in court proceedings where the Rules of Evidence apply, that generally-speaking, polygraph results simply aren’t admissible.

Since the polygraph condition is related to the offenses charged, and can help ensure rehabilitation and public safety by making sure Mr. Campbell is compliant with his treatment, the condition is upheld.

The other condition, though, gets reversed and sent back to the trial court for further consideration.

The Department of Corrections included a condition requiring that Mr. Campbell’s probation officer had to pre-approve any employment he got. At the time of the hearing, Mr. Campbell objected to this, saying it was overly broad and gave the PO too much power. The defense lawyer objected to this and gave reasons. The judge added language to say that approval of a job could not be “unreasonably withheld.” The defense lawyer said “thank you” and everyone moved on.

SCOV sees a problem here. Probation conditions are supposed to be reasonably related to the incident at hand. There had been some discussion in the sentencing hearing that Mr. Campbell seemed to have a problem with alcohol, and so it would be reasonable for the probation officer to prohibit him from working in, say, a bar. But the condition imposed didn’t say that, and that’s what the problem is.

If a probation condition is too broad, it essentially gives the probation officer unfettered reign over how the condition is supposed to be enforced. Where issues are reasonably foreseeable, like the alcohol issue noted in this case, the court needs to make findings and tailor the conditions appropriately. Furthermore, the condition as written doesn’t give the probation officer any guidance about what is permissible and what isn’t.

Long story short, probation conditions are supposed to be related to the offense, and are also supposed to be precise enough that everyone reading them knows what is and isn’t expected to happen. SCOV remands the employment condition to the trial court for revision.

Finally, there is a great paragraph nestled in the majority opinion about lawyers saying “thank you.” Saying “thank you” to a judge is something lawyers do, almost without realizing it. It is the polite thing to do and it happens all the time. I bet on a busy court day I thank the judge at least fifteen times. The State tried to argue that at times when the defense lawyer said “thank you” that it was in concession of an objection. SCOV says, “back up the truck. Being polite isn’t waiving an objection.” In fact, sometimes a lawyer gets an objection overruled, and the only thing left to do is to be polite.

Justice Dooley concurs. He points out that this is yet another situation where a trial court has imposed pre-printed, computer generated probation conditions without making appropriate findings to back them up. His concurrence seems to be a reminder that while pre-printed conditions can be useful, their inclusion has to be supported by findings.