Sunday, November 26, 2017

Bail, or Not?

Hay! That’s the wrong kind of bail!
State v. Orost, 2017 VT 110

By Elizabeth Kruska

This is a bail appeal across four different dockets. Two get reversed, and that’s really only just so that bail can be imposed in those two particular cases.

Right-o. So, Mr. Orost was charged with a whole bunch of offenses. On October 16, 2017, he was arraigned on Docket 357 (the docket numbers are helpful because there are many of them). Three of the seven counts were punishable by life imprisonment. Two were counts of sexual assault of a child under the age of 18 entrusted to defendant’s care, and one count of aggravated sexual assault.

I already see where this is going.

Reversal

Why does the caged bird sing?
Wait. What? 
In re B.K., 2017 VT 105

By Elizabeth Kruska

Between basically the dawn of time and 2015, the Vermont Supreme Court didn’t overturn any termination of parental rights orders from the lower courts. Since then they’ve overturned several, including the one here.

So, here’s what happened. B.K. and L.K. were two little kids—ages six and seven—taken into DCF custody in 2014 on allegations that they were children in need of care and supervision (CHINS). This filing was because parents had apparently not engaged in services meant to rehabilitate them for domestic violence and substance abuse. The kids suffered trauma as a result of the violence in the home. They missed a lot of school during the 2013-2014 school year.

DCF created a case plan with services for the parents, and a concurrent goal of adoption and reunification with either parent. For those not mired in the fun that is juvenile court, a concurrent plan means DCF simultaneously plans for multiple outcomes. If the parents get it together and can reunify—great. If they can’t, plans to move forward with adoption happen. It’s not fair to little kids to keep them in the system for a long time while parents try one thing, potentially fail, and then a new plan has to start.

Timing is Everything

Does the clock keep ticking? 
State v. Villar, 2017 VT 109

By Andrew Delaney

This case is interesting (I’d drop a footnote here that says “If you’re a nerd,” but footnotes are a pain in these posts, so we’re going with a parenthetical). Can the prosecution dismiss a case while it’s on appeal? The trial court judge said, “Nope.” SCOV disagrees.

Mr. Villar was convicted of DUI in 2015. He was sentenced to six months to three years, all suspended but 15 days. Though the opinion doesn’t say so, I assume it must’ve been a DUI3 or more given the upper limit of the sentence.

Mr. Villar appealed. His sentence was not stayed pending appeal. The appeal process was like a slow ping-pong match. There were several requests for additional time that were granted. At one point, before briefing was complete, the parties tried to enter a stipulation and plea agreement. SCOV pinged the ball back to the trial court, but the trial court denied the agreement. The ball ponged back to SCOV. More time for briefing, then a ping back to the trial court for an agreed-upon dismissal. The trial court denied the motion to dismiss and a motion to reconsider.

Barred From the Bar

Careful with your words here. 
In re Brittain, 2017 VT 31

By Eric Fanning

Eric Brittain applied for admission to the Vermont Bar and was denied because he failed the Character and Fitness review. He wants SCOV to let him practice law in Vermont, and so he appeals.

SCOV has original jurisdiction because it is responsible for regulating the practice of law in the State of Vermont, and has disciplinary authority concerning lawyers. One of the requirements of admission to the Bar is demonstration of good moral character and fitness, which is decided by the—wait for it . . . Character and Fitness Committee.

The Committee vets would-be-licensed attorneys, and tries to make sure that lawyers who actually are admitted have decent character and ethics. For example, applicants with a lengthy history of felony convictions or bearers of false witness (if I may get biblical for a moment) will have a hard time being accepted to practice law, even assuming they’ve already satisfied the educational requirements for admission. You don’t have to be Mr. Rogers to pass the Character and Fitness review, but somebody with the ethics of, say, Daniel Plainview probably won’t make the cut. The “fitness” part doesn’t mean fitness like this, it just means means that you have to be physically and mentally capable of doing a lawyer’s job—but that’s not our focus here.

Sunday, November 5, 2017

You Can’t Go Home Again

This puppy is unbearably cute. It has
nothing to do with the story.
State v. Shores, 2017 VT 102 (mem.)

By Andrew Delaney

Thomas Wolfe’s posthumous novel of the same title as this post is 743 pages long. So don’t say we never taught you anything. I really wanted to put "nothin" at the end of the last sentence but that would be a double negative and double negatives, sadly, are wrong—even if they sound way more entertaining than proper English. 

In February, Ms. Shores was charged with second-degree murder and held without bail pending a weight-of-the-evidence hearing. After the hearing, Ms. Shores was continued held without bail, she appealed, and SCOV affirmed. Allegedly, this is in a published entry order. Guess where it’s not? On the judiciary website.

Ms. Shores filed a motion for home detention. It was denied after a hearing and she didn’t appeal. A few months later, she filed a second motion for home detention. There was another hearing, an agreement that the evidence from the prior hearing could be factored in, some more testimony, and some agreed-to proffer from a Trooper, though it’s not clear what it was. The court issued a written decision denying the motion.