Wednesday, September 30, 2015

The Principal Principle



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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