By Charlie Buttrey
Perhaps the only thing worse than losing in front of the Vermont Supreme Court, particularly after it agrees with you that the trial judge made a mistake, is losing by a split decision.
Glen Haskins knows the feeling.
Haskins was convicted of attempted murder, following a wild brawl in downtown Burlington at 2:00 a.m. on a cold January night in 2012 during which the victim was stabbed in the stomach. (Fun aside: On Youtube, there are at least three different songs with the lyric “Nothing good happens after 2 a.m.”).
The evidence at trial regarding who did what when was wildly inconsistent among the various witnesses. Moreover, the victim was unable to identify the assailant, and there was no physical evidence tying Haskins to the stabbing. So, at trial, the State relied on multiple witnesses, whose testimony, writes Chief Justice Reiber in his majority decision, “was incomplete or conflicting.”
On appeal, Haskins first appears to score big: The court agrees that the trial court erred when it refused to allow a police officer to testify that one of the witnesses called him to say, falsely, that he had heard two other witnesses pin the stabbing on Haskins. The “Hearsay Rule” ordinarily prevents a witness from testifying to what he may have heard someone else say, but the rule only applies if the statement is being introduced for its truth. In this case, Haskins’ lawyer was introducing it to show that the witness lied, not for its truth. The testimony should have been admitted. It wasn’t.. Everyone on the Court agrees that it should have come in.
So Haskins wins, right?
Not so fast, gentle reader. Although the Court gives lip service to the proposition that appellate courts don’t “play the role of factfinder,” a majority of the Court goes on to, well, play the role of factfinder. While dressed in the garb of “harmless error” analysis, the Court places itself in the jury’s position, examines all of the evidence, and concludes that Haskins would have been convicted even if the trial court had allowed the evidence. This conclusion, of course, requires that the Court “play the role of factfinder,” a task traditionally delegated to a panel of twelve impartial jurors.
This conclusion doesn’t sit so well with Justice Robinson who, after extensive review of the various witnesses’ differing and contradictory testimonies, concludes that “[i]n the context of a case with significant weaknesses that depends almost entirely on the credibility of the very witnesses whose testimony the defense sought to impeach, I cannot conclude beyond a reasonable doubt that the erroneously excluded testimony would not have impacted the jury’s verdict.” She dissents—joined by Justice Skoglund—and would have granted a Haskins a new trial.
If it’s of any consolation to Mr. Haskins, the Court is unanimous in rejecting his claim that the trial court’s jury instructions on reasonable doubt and permissive inferences warranted reversal. With respect to the former, the trial court equated the “beyond a reasonable doubt” standard with that of “great certainty.” Haskins maintains that “great certainty” didn’t go far enough, and that the standard should have been that of “utmost certainty.” The Court isn’t buying it. With respect to the instruction regarding permissive inferences, the Court again finds no error in the instructions.
And Haskins is left with the frustrating thought that he was one measly vote away from a new trial.