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| These are probably prettier than the "Northern Lights" in the case |
By Elizabeth Kruska
I happen to like probation violation hearings.
Not because of what they are, but I like how they operate. It always feels to me like there are discrete steps to violations of probation (VOPs, for short), and that is somehow oddly satisfying. If someone is on probation, it’s basically a contract between the defendant and the state. In exchange for the State not seeking to have someone go to jail, the defendant agrees to abide by certain terms and conditions. Potentially a win-win situation. If the defendant violates one or more of the terms, then the State can seek to have the court find a violation. From there, if the court does find a violation, it can impose the underlying sentence and the defendant could have to serve that sentence in jail.
VOP hearings are a little bit civil and a little bit criminal, and the rules of evidence don’t apply. That doesn’t mean this is the wild west of court proceedings. Just because the rules of evidence don’t apply doesn’t mean that every piece of evidence is admissible.
Let’s talk about hearsay, because that’s the big deal in this case. I can boil down the rule on hearsay very quickly. Hearsay is an out of court statement, uttered by someone other than the declarant, and used to prove the truth of the matter asserted in the statement. Hearsay is generally not admissible, except when it is. This drives everybody bananas.
The whole point of getting evidence before a factfinder is to ensure that the evidence upon which the facts are to be found is reliable. A copy of a deed you go get at the town clerk’s office: that’s probably reliable. Something that is tinged with someone’s opinion: that’s probably not reliable. Also, things heard by someone and passed on through someone else: probably also not reliable. I like to think of multiple hearsay as the REO Speedwagon rule. If you heard it from a friend who heard it from a friend who heard it from another, it’s not admissible. Also, the Marvin Gaye rule makes hearsay inadmissible. The grapevine is a good source of gossip but not a reliable source, soulful grooves notwithstanding.
You can thank me later for getting either or both of those songs stuck in your head.
Amanda Stuart was arrested and charged with a driving-related offense. In May 2016 she pled guilty to the offense and received a probation sentence. Relevant and messy: she was already on furlough for an unrelated crime. Her furlough had been revoked, and she waited in jail pre-trial to resolve the driving charge. Everybody thought she was going to get out in May 2016, but she didn’t get out until November 2016 because she didn’t have a place to live.
She had some probation conditions to follow when she got out: she had to not use unprescribed drugs, she had to do drug treatment, she had to do the CRASH program, and she had to do the reparative board program.
Between November 2016 and April 2017, she did an inpatient drug treatment and then went to live at Northern Lights, which is a sober living house. For some reason she was asked to leave Northern Lights, and ultimately went to the Tapestry treatment program in Brattleboro. She didn’t finish that program.
After all this she ended up incarcerated again in April 2017 on another furlough violation. The basis of that violation (which does not get heard in court) was for having a positive drug test for benzodiazepines. In August—so, 3-4 months later—a probation violation got filed in court alleging that she violated her probation by: (a) testing positive for benzodiazepines; (b) not completing the CRASH program yet; (c) not doing the reparative board program yet; and (d) being discharged from the Tapestry program.
She had a hearing in October 2017 and the judge found she violated her probation. Then the judge revoked her probation and ordered her to serve her whole sentence in jail.
Only the probation officer testified on behalf of the State. From what I can tell, Amanda actually had a prescription for a benzodiazepine and had her doctor ready to testify that there was a valid prescription. The PO was going to testify that actually there were multiple different benzos in her system. Amanda objected on hearsay grounds, and the court never really addressed the situation. They just moved on, and ultimately the doctor didn’t testify.
Then they moved on to CRASH. The PO conceded that Amanda hadn’t really been out of jail for very long between November and April, and that while she was out, she spent a pretty big piece of that time in various rehab facilities. The PO also slipped in some testimony about Amanda getting kicked out of the sober house for breaking rules. There’s a footnote about this. I’ll just say my head nearly exploded before I read the footnote. This is exactly the kind of hearsay a court cannot rely on in making findings in a probation violation case. Then I read the footnote and learned the PO apparently said she learns when people leave various programs as part of her job as a PO. This still doesn’t clear up the issue about the reason she left—that’s hearsay unless someone from the program testifies. And nobody from the program testified.
Then, moving on to the reparative board condition, the PO didn’t seem to have information that Amanda did or didn’t do the program. She did also testify that she didn’t help set up Amanda’s participation, make a referral, or remember talking to her about the program.
Last was the substance-abuse-treatment condition. Amanda was required to complete counseling as a condition of probation. The PO testified that when Amanda got out of jail she enrolled in an inpatient program at Maple Leaf. She completed that. Then she moved to the sober house. While there, she did an outpatient treatment program, which she also completed successfully. When she was discharged from the sober house she was referred to the Tapestry program, which is the Department of Corrections’s in-house (sort of) substance treatment program for women. She didn’t complete the program, which led to the probation officer filing a violation. There was no credible evidence given for any reason she left the program.
The judge ruled that Amanda violated her probation by not doing CRASH and by being discharged from Tapestry and not completing the “Northern Lights program.” He revoked her probation and imposed the underlying sentence.
She appeals. SCOV reverses for a few reasons.
First of all, in order to have a probation violation, the State has to prove that there was a validly-imposed condition, and that the defendant’s action or inaction constitutes a violation. The burden then shifts to the defendant to show that the violation was not willful. For example, suppose Amanda went to Tapestry but had to leave because she got a contagious virus and it was deemed unsafe for her to continue with the program. It’s not her fault she couldn’t continue; her ending the program wouldn’t be willful so that couldn’t be a violation. In every VOP case, the court has to make factual findings, and then determine whether the probationer’s actions legally constitute a probation violation. As long as the evidence fairly and reasonably supports the legal conclusion, SCOV will leave it alone.
Here, SCOV reverses the trial court. First of all, the trial court admitted hearsay upon which it made findings. However, since that hearsay was the sole source of evidence upon which the court made its findings, it was also supposed to subject it to the good cause test, which the court didn’t do. There was also no evidence that Ms. Stuart failed to engage and actively participate in Tapestry. Last, SCOV reverses on the CRASH issue, because there wasn’t any evidence to show that Amanda knew she needed to do it immediately, and also because she had plenty of time on probation to get it done.
Let’s take these in turn. First of all, with this good cause test on the substance abuse condition. Like I said above, some hearsay is admissible in VOP hearings. Because a defendant has the right to confrontation (yeah! 6th Amendment!) and due process (yeah! 14th Amendment!), the court has to show good cause why it should dispense with those and admit the hearsay. First, the State has to show why a live witness is undesirable or impractical. Second, the hearsay has to be reliable. If the live witness requirement and reliability requirement are met, then there’s good cause to admit the hearsay. If the State can’t make this showing, then the court can’t admit the hearsay.
This particular hearsay—about Ms. Stuart leaving the Tapestry Program—was exactly the kind that shouldn’t be admitted. Tapestry is in Vermont, and someone who works there could have been required to attend the hearing. Instead, the probation officer gave a secondhand report about the fact Ms. Stuart was discharged. And secondly, this information was likely subjective or based on opinions. It’s one thing to give hearsay testimony about something that is factual—it’s quite another to give hearsay testimony about someone else’s opinion. Yes, she was discharged, which is factual, but the reason behind it may have been subjective. The State is going to need a firsthand witness to give this testimony.
Second, SCOV tackles a question around the sufficiency of the evidence presented. Just because Ms. Stuart left the Tapestry Program doesn’t mean she didn’t participate appropriately while she was there. Not finishing something isn’t the same as not participating, and SCOV finds that the trial court couldn’t have made a finding about nonparticipation based on the evidence before it.
Last, SCOV discusses the CRASH violation. The VOP complaint alleged that Ms. Stuart “had not yet completed the CRASH program.” This was true— she hadn’t finished CRASH. On the other hand, at the time this VOP was filed she still had buckets of time left on probation (and truthfully, hadn’t even started the probation sentence yet because she was still on furlough from the first sentence). Also, it’s not like she was just sitting around doing nothing between her sentencing and VOP. She was only in the community for a short period of time, and much of that time was spent in various rehabs or treatment facilities. There just wasn’t any evidence that she didn’t do CRASH or couldn’t get it done.
So, this one gets reversed.
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