2016 VT 36
By Elizabeth Kruska
Twenty four paragraphs in to this bail decision, SCOV gets to what’s really going on here. That there are twenty five paragraphs by five justices devoted to a bail decision, when bail decisions are usually single-justice decisions, also suggests there’s something else going on here.
Jeremy Gates got charged in 2014 with extortion, domestic assault, and unlawful mischief. Sounds bad, right? The allegation, as recounted by SCOV, was that he went to his mom’s residence to get some money. She was his social security payee. She wouldn’t give him money, so he threatened to kill her. He gets social security apparently because he suffers from severe cognitive difficulties. This is in the second paragraph of the opinion, and this is where I start seeing a giant red flag waving around. I totally know what’s coming next.
He was arraigned on the original charges and released on some conditions of release, including a condition that he not have contact with his mom and a condition that he not go to the motel where she was living.
Jeremy then picks up several new charges—largely theft offenses—and seventeen violations of conditions of release for having contact with his mom or going to her motel or both. Based on the facts of the case and the fact that this fellow apparently receives social security for cognitive problems, I’m guessing he was a violation waiting to happen. For heaven’s sake, the putative victim in his domestic assault case is his payee. This means that not only does he receive social security, but he’s not really in the right condition to handle receiving his own money. He needs someone to do it for him and that person is someone he’s not allowed to talk to.
On the last go-round with VCRs, the trial court held an evidentiary hearing and ultimately held Mr. Gates in jail without bail. During the hearing the State presented some affidavits from some police officers, where the police wrote they believed there was probable cause for violating the no-contact order and the order not to go to the motel. Jeremy called his mom to testify. She said that with respect to that violation, the contact she had with Jeremy was incidental. She also said that she was not afraid of Jeremy, and that he was in no way trying to persuade her not to go forward with the case.
The judge decided that Mom was not “terribly credible” and concluded that since Jeremy had contact with her multiple times since the original charges, that it must be having an effect on that case. Jeremy was also charged with obstruction of justice for threatening to let the air out of a prosecutor’s tires. Combining these things together, the court found that his conduct had a detrimental impact on the justice system, and that he should be held without bail.
SCOV examines the prongs of the statute under which the trial judge made that finding, and says nope, nope, nope, nope. SCOV says the record doesn’t support the findings and reverses.
The court can’t just hold people without bail. To do so is a deprivation of liberty, and believe it or not, until someone is proven guilty he is innocent. A shocking revelation in these knee-jerk times, I know. But holding a person without bail pending trial is supposed to be done in very rare and limited circumstances. That’s the balance.
There is statutory guidance for courts as to when someone may be held without bail pending trial. The applicable statute here has to do with situations where a defendant’s conduct creates such a threat to the judicial process that there is a compelling state interest in holding the person. This has to be more than garden-variety behavior, though. The words “compelling state interest” signal that a very high level of scrutiny needs to be applied.
There is also a section of the statute that allows someone to be held without bail for repeated violations of conditions of release. But for the court to be able to use that section, there has to be a showing that there is also a disruption of the prosecution. In order to find that, the court has to make a finding by a preponderance of the evidence, and it has to be based on more than affidavits. There has to be a hearing and there has to be testimony. The court can use affidavits but it’s also got to have some live testimony.
Item number one: the statute says a defendant can be held without bail if the court finds the defendant “intimidated or harassed a victim, potential witness, juror or judicial officer in violation of a condition of release.” In the VCR that led to this bail decision and appeal, Jeremy had contact with his mom. The facts, as stated by Mom, were that she went into a room she knew Jeremy’s brother occupied, and when she went in, saw Jeremy inside. She left as soon as she saw him. The court somehow drew the conclusion that Jeremy was intimidating her during this, even though there wasn’t any evidence of that, and SCOV finds that there wasn’t enough evidence to prove intimidation such that conditions of release needed to be revoked.
Item number two: the statute also authorizes the court to hold a defendant without bail for repeated violations of conditions of release. But, repeated violations alone aren’t enough; there also has to be a showing that the violations disrupted the prosecution of the original case. The evidence here is pretty weak, so SCOV says this isn’t enough.
Item number three: the statute allows a defendant to be held without bail if he or she violated a condition which constituted a threat to the integrity of the judicial system. The trial judge said this happened when Jeremy threatened to let the air out of the prosecutor’s tires. SCOV doesn’t quite get how this is a violation of conditions of release, but notes that Jeremy had a condition not to get charged with new crimes, and this threat led to an obstruction of justice charge.
The obstruction allegation is certainly a threat to the integrity of the system. SCOV finds, though, that the court would have had made a finding that Jeremy actually committed the offense, not just that he was charged with it. The trial court didn’t make sufficient findings to support that.
SCOV goes on to say that if the State tries to hold someone without bail pursuant to this particular statute, the State has to proffer live testimony to connect the allegation about the new offense to the violation. It’s not enough that the State brought in a witness to testify about a prior violation and then relied on affidavits for the obstruction-related violation.
Item number four: a defendant can be held without bail if, in violating his or her conditions of release, the defendant was charged with a new felony or a new crime against a person or an offense like the original offense. The problem with this is that if the new charge is a bailable offense, the fact of being charged with that offense could make someone eligible to be held without bail. SCOV finds that this doesn’t work under the Vermont Constitution.
And toward the end, SCOV gets to the meat of the matter. This case got stalled pretty significantly because there is a question about whether or not Jeremy is competent to stand trial. SCOV notes that he had been previously found incompetent. Pair this with the information from the beginning of the opinion about his cognitive difficulties, his social security, and his having a payee, and it’s pretty clear that his mental health issues are pretty closely connected to his ability (or inability) to follow conditions of release. SCOV urges the parties to get competency figured out, and to do it quickly so that the cases can reach a conclusion.
SCOV reverses the hold-without-bail order, and remands the whole matter to the trial court to consider whether additional conditions of release are needed.