Tuesday, April 25, 2017

Estoppel Denied

State v. Nutbrown-Covey

If you went to law school, you likely remember that hazy, confusing time during the first semester when nothing makes sense and when it feels like you’re trying to study and learn a new language all at once. This is around the time first year students learn about claim preclusion and issue preclusion. Your brain probably fogged over and you thought, "wha?" Luckily, it's one of those things that in practice makes perfect sense. 

This is an issue preclusion case. Issue preclusion, or collateral estoppel, is part of the legal doctrine that allows a party to litigate a matter once. This generally pops up in civil cases, but sometimes there’s cross-over into criminal cases, as you’ll see here. The point is that a party doesn’t get to keep litigating the same thing over and over if generally all the moving pieces to the matter are the same.

Sunday, April 23, 2017

Silence is . . . Problematic

To speak or not to speak? Now that
is the question . . .
State v. Ladue, 2017 VT 20

By Andrew Delaney

First, the story. Once upon a time, or more specifically, at around 11:00 p.m. in Burlington on January 27, 2014, a woman heard a crash outside of her house. She then saw a late-90s silver-colored Honda with a loud exhaust backing away from a Subaru. The police were summoned. 

Mr. Officer showed up and chatted with Ms. Witness. Mr. Officer went looking for the Honda, was not successful in his efforts, and so returned to the scene of the crime. Lo and behold, a silver Honda was parked nearby. So Mr. Officer talked to Ms. Witness and she said, “That’s the car, officer!”

So, Mr. Officer ran the plates, identified Mr. Ladue as the registered owner, and moseyed over to Mr. Ladue’s house. Mr. Ladue was not home, but his mom was. As Mr. Officer was getting into his patrol car, however, Mr. Ladue pulled into the driveway driving the silver Honda. So Mr. Officer stopped his egress and walked up the driveway and confronted Mr. Ladue. The first question Mr. Officer asked him was whether anyone else had driven the car that night. Mr. Ladue allegedly said, “No.” Mr. Officer didn’t see any visible damage to the vehicle.

Friday, April 21, 2017

The Debt That Doesn't Die

H&E Equipment Services, Inc. v. Cassani, 2017 VT 17

By Andrew Delaney

I know a thing or thirty about debt following one around. Thanks to law school, I’ll be paying on loans until I die. There’s no sense in filing bankruptcy because student loans generally don’t go away even then. I’m not complaining. But debt can be a bit of a pain in the you-know-what. I’m not a fan. I’m guessing Mr. Cassani also is not a fan.

H&E Equipment Services, Inc. (H&E) got a judgment against Mr. Cassani in Arizona in 2001, and renewed the judgment twice in Arizona. In early 2015, H&E filed a complaint in Vermont to collect the judgment—a little over $56K plus interest—and attached a 2011 “judgment renewal affidavit” from Arizona.

Mr. Cassani moved to dismiss the complaint under this statute, which gives one eight years to collect on a judgment in Vermont or else it’s game over. Mr. Cassani apparently argued that the original 2001 date was the controlling date rather than the 2011 renewal. The trial court said, “Nice try, but no cigar.” Mr. Cassani moved for reconsideration. Still no cigar.

Broad Questions

In re Atwood, 2017 VT 16

By Elizabeth Kruska

I am a sports fan. I like some sports better than others, of course, but I think I can safely say I generally “like sports.” I don’t especially like the post-game interview, though. You know, the one where someone who works for a television network goes over to the winning coach or player, and asks completely ridiculous, unanswerable questions. They’re always along the lines of, “how special is it for you that you’ve won the Big Game?” As if the player or coach is going to say, “meh, this wasn’t that big a deal.” Instead, the answer is always a Grandpa Simpson-style rambling non-answer like, “I just want to give a shout out to my teammates about how we overcame adversity and stuck together to win this game.” That is not an answer to the question, and quite frankly, doesn’t answer any question anyone asked ever.

That’s maybe a little bit like what happened in this case. Atwood Enterprises, Inc. (Atwood) acquired 28 acres of land in Jericho where they planned to build a housing planned unit development (PUD). In order to do this, of course, Atwood needed to get a permit from the local board, and before they did that they had to provide appropriate notice to the surrounding landowners. The neighbors learned about the permit and showed up at the meeting to voice concerns and objections. The local Development Review Board took the neighbors’ concerns into consideration and ultimately gave the green light to Atwood to start the building.

Neighbors (there are several, and it’s easier to call them “Neighbors”) appealed the DRB’s finding to the Environmental Division. When an opposing party appeals to the Environmental Division, the party has to sent a Statement of Questions and this creates the framework for any future evidentiary hearing. Neighbors asked an incredibly broad question. “Does the six-unit, three-duplex PUD subdivision on a 28.5 acre portion of an approximate 123 acre parcel of land owned by Atwood Enterprises, Inc. satisfy the requirements of the Jericho Land Use and Development Regulations?”

Thursday, April 20, 2017

Remand for Sentencing

State v. Sullivan, 2017 VT 24

I want to make sure this is really clear: this case involves a remand for sentencing. That means his sentencing hearing is supposed to happen again. Not that he’s not getting a sentence, not that he’s “getting off for free,” not that he’s getting his conviction overturned. It’s that he’s getting another sentencing hearing.

I point this out, because by the time I’m writing this summary, I’ve seen the news articles about the SCOV decision in our local media. I also read the comments people posted in reaction to the story. Some people are really upset that he gets a new sentencing hearing, and perhaps misunderstand that the court’s decision doesn’t change the defendant’s guilt or innocence in the matter. This is because either a) they didn’t actually read the news story indicating that there’s a new sentencing hearing or b) the news story somehow made it seem like someone got away with something.

Sunday, April 16, 2017

Justice Delayed?

State v. King, 2016 VT 131

By Andrew Delaney

Does a three-year-plus delay in bringing charges after an investigation concludes violate due process under the U.S. or Vermont Constitutions? As always, it depends, but the short answer is no.

Back in ’08, the Department for Children and Families (DCF) started a sexual assault investigation, which DCF sent over to a detective. The detective interviewed the complainant, sent the case to the State’s Attorney’s office, and interviewed a couple more witnesses. From what I can gather, the complainant and her friend (one of the witnesses) were teenagers in 2008-09 and the alleged acts occurred in the early 2000s. And then the case kinda sat around from 2009 until 2012.

In the meantime, DCF sent a substantiation letter to Mr. King. Though Mr. King never appealed the substantiation, he did ask for it to be expunged. The DCF Commissioner denied the request.

Saturday, April 15, 2017


In re PRB No. 2013-145, 2017VT 8

By Elizabeth Kruska

Let me sum up (or tl;dr, in the parlance of our times), attorneys have to keep their client trust accounts up-to-date, accurate, reconciled, and accurate. Did I mention accurate?

As a lawyer, I know that one thing we lawyer-types like to joke about is how we don’t like numbers. I used to have lots of cases with a particular former prosecutor who would frequently say things like, “I’m a lawyer! I don’t know anything about counting!” This is someone who is a good lawyer, who I like very much, and yes, who was no good at counting. Numbers are no joking matter, though, when it comes to other people’s money. And by people, I am referring to a specific group of people: clients.

I know we have a pretty varied audience, including lawyers and non-lawyers alike. For non-lawyers, and for readers who haven’t experienced how hourly legal fees generally work, I’ll be glad to explain. Suppose Client hires Lawyer to represent him in a case and Lawyer will charge an hourly fee. Lawyer gets a retainer from Client and bills hourly against the retainer. The retainer is always Client’s money, and Lawyer has to earn the money by doing the work. If the case is finished before the retainer runs out, Lawyer gives back to Client what’s left. In the meantime, though, the retainer sits in Lawyer’s client trust account. This is also sometimes referred to as an IOLTA (interest on lawyers’ trust accounts) account. Any interest that gets generated by the money in the account doesn’t belong to either the client or the lawyer; the bank collects it and distributes the interest to the Vermont Bar Foundation, which uses that money for funding various low-income legal assistance projects.

Saturday, April 8, 2017

Will be Conditional or Not

In re Holbrook, 2017 VT 15

By Thomas M. Kester

Tom Sawyer watched his own funeral. 

But Dr. Alfred Nobel most likely read his own obituary in April 1888. How was that possible? Alfred’s brother, Ludvig, died in Cannes, France in April 1888 and the French newspapers mistakenly thought the deceased “Nobel” to be the more famous one (talk about fake news). This journalistic specter of death is bad on its own, but the French newspapers’ headlines would have stopped Alfred Noble cold in his tracks. 

One in particular proclaimed: Le marchand de la mort est mort (“The merchant of death is dead”). For those who don’t know, Alfred Nobel was the inventor of dynamite. Alfred thought himself a great inventor, as he believed his invention was for betterment of humankind—like to move earth for monumental construction projects such as the Panama Canal. The mistaken obituary may have led Alfred Nobel to rethink his life’s work and its lasting impression on the world. He changed his will sometime after April 1888 and, upon his real death on December 10, 1896, his fortune funded and ultimately created the Nobel prizes. Scholars on this subject don’t know for sure if reading his own obituary and the dissonance between its macabre reflection and his own personal views caused Alfred Nobel to use his will to create the Nobel prizes—a symbol of having accomplished extraordinary and noble acts in one’s life. 

Prison Presumed

State v. Henault, 2017 VT 17 (mem.)

By Andrew Delaney

Mr. Henault was held without bail. He appeals.

He’s charged with four counts, including a sexual assault charge that carries a potential life sentence. 

There’s a general presumption that bail will be granted. But when a crime carries a potential life sentence and the State can show “great” (I’ve griped about this terminology before) evidence of guilt, that presumption gets flipped on its head, and the presumption is that the defendant will be held without bail. The trial court has discretion, however, to impose conditions of release and allow bail. In making that determination, the trial court can look at the nine factors listed in subsection b of this statute, though it’s not required to. This is because the statute, by its terms, applies only when there’s a constitutional right to bail.

Use it or lose it

Pratt v. Pallito, 2017 VT 22

By Andrew Delaney

In appellate procedure, an issue not raised below becomes the proverbial snowball in hell. This is a constant. There’s the rare exception for clear error and manifest injustice, but for the most part, the phrase “an issue raised for the first time on appeal” is the death knell for an appellate argument. I think of Rule 75 petitions as (more or less) appeals of administrative proceedings.

This case deals with whether a petitioner can challenge a Department of Corrections’ (DOC) disciplinary conviction in the trial court on grounds not preserved in the DOC proceedings. The SCOV says “Nope.”

Disciplinary convictions in the DOC system follow a step-by-step path. When an inmate is charged with violating a rule, a hearing officer holds a hearing on the alleged rule violation. If the violation is upheld, a report is submitted to the Disciplinary Committee, which reviews the hearing officer’s decision. Then it goes to the Superintendent for review. Then the decision goes to the inmate. The inmate has a week to appeal. The Superintendent has to specifically address all appeal issues raised by the inmate in the appeal. After that, an inmate can challenge the conviction in the superior court, civil division with a Rule 75 petition.

Probation Conditions . . . Again

State v. Albarelli, 2016 VT 119

By Elizabeth Kruska

I know what you’re thinking. You’re thinking it’s been a little while since there was a case about probation conditions from the Vermont Supreme Court. That’s a little inside joke around here, because there have been something like eleventy-jillion cases about probation conditions in the last couple years. Here’s another one. Well, there are two parts to this case, and one of them involves probation conditions.

Backing up. Cameron Albarelli got charged with simple assault, disorderly conduct, and providing false information to a law enforcement officer. The facts alleged were that he was with a group of guys bar hopping on Church Street in Burlington one night. They were celebrating an upcoming wedding, which was the following day. Albarelli had a lot to drink. At one point, his group confronted a man sitting on a bench. Another group of people saw this confrontation and tried to intervene. That led to Albarelli and a person in the second group getting into a fight. It ended and Albarelli ran down the street. Someone called the police, and they were able to identify Albarelli by his clothing.

Albarelli initially told the police his name was “Cameron Mitchell” and gave a date of birth that was 1 year off his actual date of birth. His full name is Cameron Mitchell Albarelli. He didn’t exactly admit that he was in a fight, but alluded to the fact that he ran away to get away from the confrontation. He had a trial in his case and was convicted on all three counts. He got a sentence that included probation and work crew.

Sunday, April 2, 2017

Nope, nope, nope

State v. Richard, 2016 VT 75

By Andrew Delaney

Mr. Richard wasn’t interested in being pulled over. He ran a stop sign, so a trooper started following him. Mr. Richard was allegedly driving erratically. When the trooper turned on the blue lights, Mr. Richard kept going until he reached his driveway. He got out and started walking up the ramp to his house. The trooper stopped him.

The trooper testified that Mr. Richard smelled like booze and seemed out of it. Mr. Richard repeatedly said “don’t do this,” and when the trooper said, “C’mon let’s go,” Mr. Richard said, “Nope, nope, nope.” Now it’s been a little while since my drinking days and I don’t want to sound like I’m on the trooper’s side here, but “nope, nope, nope” is—in my, uh, training and experience—classic Drunkanese for “no, thank you, sir.”

The trooper thought so too, and cuffed Mr. Richard and gave him a ride to the police station. To be fair, Mr. Richard was already home, so I can understand why from his perspective this was a nope-nope-nope situation. There was an exchange after the breath test at the station about a trip to the hospital for an independent blood test but Mr. Richard didn’t have the supposedly required seventy-five bucks. So Mr. Richard said, “Well, I don't have seventy-five bucks, so.” My wife hates when I talk like that. I can always expect a, “So, what?” The trooper apparently did not have my wife’s pet peeve so that was the end of the conversation.