Sunday, October 21, 2018

Violence, Clarified

Violent or no? 
State v. Bryan, 2016 VT 16

By Christopher A. Davis

Probation can be a confusing system to navigate. Rules, regulations, contracts, supervisors, fees, costs . . . it can begin to sound less like punishment for your DUI and more like the job site of a metropolitan construction company. But in a 2016 decision, the SCOV clarified one point and emphasized another: first, groping the breasts of your partner’s 14-year-old daughter is considered “violent” behavior for purposes of probation; and second, if you want to fire your assigned attorney, and the court says no, it’s up to you to convince the SCOV that the trial court was unreasonable.

The facts are straight-forward. Defendant is convicted of larceny from a person and given a sentence that is mostly suspended (hanging over his head, so to speak) while he serves a period of probation. One of his probation conditions is that he not engage in “violent or threatening behavior.” This is coincidentally one of the most heavily-litigated probation conditions in recent SCOV history, mostly in the context of whether certain speech may be viewed as “threatening” (not the issue here, as you will see). Once placed on probation, he spends a week with a woman at a hotel in Berlin and on multiple occasions watches her two children, a girl age 14, and a boy age 9, at the hotel while she goes to work. On two occasions, according to a later report by the girl and investigation by local law enforcement and DCF, he touches the girl’s breast over her bra; this behavior occurs in conjunction with statements reportedly made by defendant to the girl encouraging the touching, discouraging the girl from reporting it, and attempting to blackmail her if she does report it by disclosing sensitive information he learned from spying on her use of his cell phone.

In what must have been a shock to local dating circles, defendant’s relationship with the children’s mother independently comes to a close a short time later and he is subsequently incarcerated for reasons undisclosed by the Court. After this point the girl discloses the touching, authorities investigate, and the probation officer responsible for supervising defendant files a violation of probation alleging two counts of violations of the condition prohibiting “violent or threatening behavior.” 

Go to the Tape

"Well, who else had access to the jar?"
State v. Manning, 2017 VT 90

By Eric Fanning

It’s your lucky day, devoted SCOV Law readers, because today we get to discuss an embezzlement case! People commonly think of embezzlement as a rich person’s crime—only occurring on Wall Street in large banks or brokerage firms where the trusted young executive skips town to his own private island with millions of dollars in ill-gotten wealth. However you don’t have to steal a lot of money to be guilty of embezzlement, and you sure as heck don’t have to be in a big city working for a big bank to commit the crime.

Case in point: Gregory Manning. Mr. Manning worked at the Corner Stop Mini Mart in Royalton- hardly a Wall Street behemoth. He was a Mini Mart employee for several years, and was also friends with the owners of the store. Manning was so close with the owners in fact, that he was the only employee allowed to make after-hours bank deposits for the store. This entailed counting the money in the cash register at the end of his shift, filling out a deposit slip, putting the money and deposit slip in a zippered bag to be deposited, and then depositing the money and slip at the bank’s after-hours deposit box.

At some point, the store owner who did the bookkeeping noticed some irregularities, namely that there were a few deposits missing: four to be exact, totaling over $10,000. As fate would have it, all four of the missing deposits were on dates when Manning was working. The bank’s search of the deposits came up with nothing. Then they went to the bank security footage, which appeared to show Manning basically pretending to drop the bags in the deposit box, putting the money in his jacket, and walking away.

Saturday, October 13, 2018

Admission Ticket Required

"I'm sorry, sir, but you need a
complete ticket to take a seat."
In re Hamid-Ahmed, 2018 VT 113

By Andrew Delaney

Mr. Hamid-Ahmed applied to take the Vermont bar exam. The board rejected his application based on its assessment that Mr. Hamid-Ahmed didn’t meet the educational requirements.

He appeals.

Mr. Hamid-Ahmed has a bachelor’s degree and an LLM. What he doesn’t have is a JD or something like it. He isn’t enrolled in the law-office-study program and he hasn’t been admitted to any other bars. But he argues Vermont’s bar admission rules allow him to sit for the Vermont bar (specifically the “curing provision” in Rule 8(c)(4)). He also argues that the board violated his due process rights when it didn’t explicitly tell him about the process for appealing to SCOV.

Sunday, October 7, 2018

Notice Needed

Static Caravan
Shires Housing Inc. v. Brown, 2017 VT 60

By Andrew Delaney

Here’s a blast from the past—March 2017 to be precise.

Landlord (Shires) tried to boot Brown and her cotenant from the mobile-home park. There was no written notice of termination of tenancy. Brown filed a motion to dismiss on the no-notice basis. The trial court found this statute (subsection (a)(3) to be precise) provides an exception to pre-eviction notice. “Nuh-uh,” says the SCOV majority. “Still gotta give notice even if there’s some ambiguity there.” And this one gets turned around on the trial court.

Brown leased a lot in a Bennington mobile-home park. The lease said that criminal and drug-related activity were grounds for termination of tenancy. It also required written notice of the reason for an eviction. Shires filed a complaint for eviction alleging that Brown and cotenant had engaged in drug-related activity. Landlord did not provide written notice before filing in court.

Saturday, October 6, 2018

CHINS Reversal

Not having it
In re M.L., 2018 VT 32

By Elizabeth Kruska

Let’s pretend for a moment you’re a parent. You’ve got a child, and the child breaks an arm. You take the child to the hospital and get treatment. This is exactly what you’d expect a parent to do. Let’s make the facts a little more serious. Let’s suppose the child has cancer and has to be admitted to the hospital. Parents take the child to the hospital and admit her. Sometimes the parents have to go home, so the child stays at the hospital because that’s where the treatment happens. This is exactly what you’d expect a parent to do.

In fact, if a parent didn’t do that, you’d expect that the state might step in and try to make sure the child got medical treatment. You’d expect this because, as a society, we are actually decent people and we don’t want to see kids harmed or hurt.

Let’s suppose instead that the child has some serious mental health issues and needs some residential psychiatric treatment. Again, probably you’d expect that everyone would be in favor of a parent making this treatment happen, and you wouldn’t think that the state would intervene and somehow say the parent was . . . . Not doing the right thing.

But that’s basically 100% what happened here. And SCOV is not having it.

Probation Predicament

These are probably prettier than the
"Northern Lights" in the case
State v. Stuart, 2018 VT 81

By Elizabeth Kruska

I happen to like probation violation hearings.

Not because of what they are, but I like how they operate. It always feels to me like there are discrete steps to violations of probation (VOPs, for short), and that is somehow oddly satisfying. If someone is on probation, it’s basically a contract between the defendant and the state. In exchange for the State not seeking to have someone go to jail, the defendant agrees to abide by certain terms and conditions. Potentially a win-win situation. If the defendant violates one or more of the terms, then the State can seek to have the court find a violation. From there, if the court does find a violation, it can impose the underlying sentence and the defendant could have to serve that sentence in jail.

VOP hearings are a little bit civil and a little bit criminal, and the rules of evidence don’t apply. That doesn’t mean this is the wild west of court proceedings. Just because the rules of evidence don’t apply doesn’t mean that every piece of evidence is admissible.

And If You Don’t Know, Now You Know

Won't you be my neighbor? 
In re Mahar, 2018 VT 20

By Elizabeth Kruska

Notice is important. With the possible exception of FISA court, parties to legal proceedings are supposed to have notice when a court is asked to make an order or determination affecting the parties’ rights. So, how does a party get notice?

Lucky thing—we’ve got rules for that.

Here’s what happened here. Mr. Mahar owns some property with his own house on it in Jericho. He wanted to add an additional structure and apartment on his land. The opinion isn’t totally clear about exactly what he was building, but I’m envisioning maybe a garage with an in-law apartment above, or something like that. Anyway, he had to apply for a permit with the Jericho Development Review Board (DRB), which he did.

After Hours

Moonlight in Vermont
State v. Morton, 2018 VT 22 (mem.)

By Elizabeth Kruska

In a perfect world, we’d all have perfect information upon which to make our decisions. But our world is far less than perfect, and sometimes decisions have to be made on the information we’ve got.

Before I was a lawyer I didn’t totally understand how it was that someone who was arrested would then end up in court. Turns out, there’s a procedure for that. Sometimes people are given a citation and told to show up later, and generally they do. Sometimes, though, a situation is such where a person might not show up for various reasons—they’re not from the area, they have a history of not showing up, they’d be afraid to show up because the charge against them is really serious, just to name a few. If that’s the case, bail might be set and the person held until their initial appearance.

Who sets bail? The court. Not police. The court. It was decided in Merry Olde England before the Magna Carta that bail couldn’t be set by the same police who were arresting people for crimes. That had happened before and was rife with problems, as you can probably imagine. 

Sunday, September 30, 2018

Something Smells

Can you smell what
the Rock is cookin'?
In re North East Materials Group LLC, 2017 VT 43

By Andrew Delaney

This is the third case in this trilogy, and yes, it’s over a year old. Nobody was jumping at writing these cases up. You can read about the first case here, and the second case here. I’ve been told I’ve gotten much wrong in those summaries. Perhaps I have. You get what you pay for here.

In this round, the neighbors (aka Neighbors for Healthy Communities) “appeal the Environmental Division's decision granting North East Materials Group, LLC, (NEMG) an Act 250 permit for operating an asphalt plant.” The neighbors specifically challenge the court’s findings and conclusions under two Act 250 criteria. They claim “conditions imposed by the court pursuant to these two criteria repeat existing requirements that NEMG did not or could not comply with and, thus, were insufficient to meet Act 250’s criteria.”

A slight SCOV majority is unpersuaded.

Telephone

An antique? 
Wool v. Menard, 2018 VT 23

By Elizabeth Kruska

Know anyone in jail? I do. I mean, I’m a lawyer, so it goes with the territory. My jail calls usually go like this, “hey, it’s Elizabeth. I’m calling to tell you (insert one very specific piece of information). I’ll try to come see you sometime soon.” And that’s that.

Sometimes clients call me. And I am often pretty quick with these calls. Couple reasons. First, these calls are recorded. There’s a warning to the caller and to the recipient of the call that the call is recorded. If you are Suge Knight’s lawyer, this might even land you in jail, depending on what you’re alleged to have said (btw, Mark Geragos gives a really good explanation of this weird case in Episode 138 of his podcast, “Reasonable Doubt” with Adam Carolla).

The other reason I’m quick with these calls is because I know it costs my clients money. A client who is in jail doesn’t really have a lot of options in terms of contacting people who aren’t in jail. They can write a letter, but that takes a couple days. If the communication isn’t urgent, this is fine. If it’s more pressing, though, a good ol’ phone call makes more sense. But it’s not as if someone in jail is able to shop for the best pricing on phone plans. No, people in jail have to use the phones they have access to, which are the phones provided by the jail.