Every person who stands accused
of a crime is entitled to a vigorous defense, no matter how horrible are the
acts that person may have committed. Standing
firmly upon that heroic principle is the case of the notably unheroic Cherie
Hyde.
There is no glossing over what
Hyde did from 2003 to 2005, at least according to the facts as recited by the
SCOV. Hyde had a daughter, just ten
years old in 2005. She also had a
34-year-old male friend named who needed a place to stay on Sunday and Monday
nights. On numerous occasions Hyde had
her friend bunk with the little girl, sharing her bed. Hyde routinely saw him
in bed with her daughter as the mother closed the door to her daughter’s room. The child would later tell her therapist that
her mother had witnessed the man sexually molesting her on at least six
different occasions.
Hyde eventually acknowledged to
investigators that all of this happened, admitting that on one occasion she saw
her male friend molesting her daughter, made eye contact with the child, and
did nothing. She simply left a sleeping
pill on the child’s dresser, walked out of the room, and closed the door.
These facts all took a while to
emerge. It was not until December of
2008 – more than three years after the molestation ended with the man’s arrest
– that the State charged Hyde with child cruelty, a misdemeanor. On January 16, 2009, the State added a felony
charge – being an accessory to, and aiding another to commit, aggravated sexual
assault.
What’s a defense lawyer to do
with horrible facts like that? Well, for
one thing, the attorney could have pointed out that more than three years had
elapsed between the last possible day Hyde had committed her crimes and the
date she was charged. Vermont has a
three-year statute of limitations for most criminal offenses.
And, in fact, that’s exactly what
Hyde’s lawyer did – as to the child cruelty charge. But not
as to the felony prosecution for being an accessory to the aggravated sexual
assault. Instead, the lawyer negotiated
a plea agreement in which the State dropped the child cruelty charge and
lowered the ‘accessory’ charge to one of aiding and being an accessory to
sexual assault. Off to prison went Hyde,
for two to ten years.
Thus the question becomes: As bad as Hyde’s conduct was, did her lawyer
also do some inappropriate looking the other way – by failing to argue that the
felony charge was just as time-barred as its misdemeanor claim was? After all, the Sixth Amendment to the U.S.
Constitution guarantees criminal defendants the effective assistance of
counsel, even in cases where counsel might be convinced that the client
deserves to do time rather than being released on a technicality.
Confronting difficult questions
like that is the reason our legal system includes post-conviction review
proceedings. Civil rather than criminal
in nature, a post-conviction review proceeding isn’t exactly a ‘do-over’ – it’s
more accurately described as a request that the Court find grounds to send the
underlying criminal case back to square one.
With the help of the state’s Defender
General, Hyde presented her petition for post-conviction review to the
Chittenden County Superior Court, which rejected her arguments. Then, as was her right, she took her case to
the SCOV. Briefs, oral argument and one
unanimous 12-page opinion later, Hyde has lost her appeal.
“As it turns out, he was right.”
That’s what Justice Skoglund’s opinion had to say about the decision of Hyde’s
lawyer in 2009 not to try to get the felony charge thrown out on
statute-of-limitations grounds. But note
the phraseology; the question of what limitation period applied to this type of
felony charge was unresolved until Hyde’s post-conviction petition forced the
SCOV to resolve it. Thus the lawyer,
unnamed in the SCOV opinion, is spared the indignity of having one of his cases
affixed with an “ineffective assistance of counsel” label. As Justice Skoglund pointed out, a prisoner
can’t succeed with such a claim unless she can prove effective lawyering would
have produced a different outcome.
The key language is found in
section 3 of Title 13 of the Vermont Statutes Annotated: “A person who aids in the commission of a
felony shall be punished as a principal.”
And by “principal” the Legislature didn’t mean the person who runs your
kids’ school. As for the principle, the
SCOV observed: “If one is to be
‘punished’ for aiding and abetting a felony offense the same as the principal
actor, then one can fairly and rightfully expect to be brought to justice for
that crime within the same limitations period as the principal.” In this case, that meant not three years but
ten – the limitation period applicable to the crime of sexual assault with a
child sixteen or younger.
Hyde raised one additional issue,
concerning the hearing at which the Superior Court accepted her plea
bargain. On such occasions, the judge
conducts a so-called “colloquy” with the defendant to assure that she is
pleading guilty on a knowing and voluntary basis. Part of the colloquy involves the defendant
agreeing she actually committed the crime in question.
Hyde claimed her guilty plea was
defective because it was never established that a key element of the crime was
present: a preconceived plan on her part
for sexual assault or, at least, an intent to facilitate the commission of such
an assault. The SCOV flatly rejected
this idea, pointing out that once Hyde saw a sexual act taking place, she had
reason to expect sexual acts would be ongoing if she continued to invite her
friend to spend time in her daughter’s bed.
Thus, concluded the SCOV, there was “circumstantial evidence of an
implied understanding” before the court, more than enough to support the guilty
plea.
This case is thus probably best
remembered as another example of a lawyer luckily guessing right about an
unresolved question of law. But one
final element, of a literary nature, deserves mention. The SCOV opinion treats a disturbing scenario
carefully; it offers only essential facts and eschews embellishment. We don’t know where Cherie Hyde lived. Her
daughter’s name remains undisclosed beyond its initials. And we do not learn why her “friend” needed a
place to sleep. The only bit of color
offered is that Hyde and her daughter resided in a “mobile home.” Why mention this? Living in such a dwellingplace is not an
element of any crime recognized in Vermont – at least not yet.
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