Weekly-ish Update April 23 to May 7, 2022

Think the opposite in opinion two

By Andy Delaney

I've actually got the 'rona right now, so I have a good excuse for skipping last week's update. 

SCOV issued two opinions yesterday, May 6, 2022. 

The first is about the terms of a proffer agreement. Now, I must say—even though I used to do criminal defense, I’ve never participated in a proffer agreement or even seen one up close. They go against my strict, don’t-talk-to-the-man rule. But they are interesting. In exchange for some limited immunity and whatever else is in the contract, a defendant can talk with the prosecution and potentially secure a deal. In this case, that’s what happened. No deal was secured, however, and then the prosecution said it was going to turn over the information in the proffer agreement to defendant’s mom (context: defendant and his mom are both facing charges relating to the murder of defendant’s stepfather). Defendant moved for a protective order and the trial court denied the motion. There’s some other procedural stuff that’s marginally interesting—including that this case’s briefs and oral argument are not public—but the bottom line is that we get to SCOV on the protective order issue. SCOV quickly does away with defendant’s confidentiality argument, concluding that the terms of the agreement don’t go there. On defendant’s argument that disclosure of the contents of the proffer would endanger defendant and his wife if disclosed to mom, SCOV has a different take. SCOV concludes that the various statutes and exceptions to mandatory disclosure work in defendant’s favor here and he might be entitled to a protective order. Back to the trial court it goes. State v. George, 2022 VT 21.

Our second opinion from yesterday is about traffic stops and illustrates the shifted ideology of SCOV over the last few years. As criminal defense folks know, a “reasonable and articulable” suspicion of wrongdoing is necessary for a police officer to make a traffic stop. In this case, defendants were stopped based on a number of small things—including stopping at a flashing yellow light, driving under the speed limit, making a wide turn, and bumping up against the centerline—none of which would have been sufficient to rise to that “reasonable and articulable” level. The trial court granted defendants’ motions to suppress. The state appeals. On appeal, the majority reasons that under the totality of the circumstances, there was enough to suspect that the driver was DUI. Not to be flip about it, but I bet your last drive anywhere probably had the same number of “clues” as the driver’s here. Personally, I think this is a dangerous opinion—the kind that can be used to justify pulling someone over without any good reason to do so. The majority (Carroll, Eaton, and Dooley) reverse the trial court’s suppression ruling and send it back to the trial court. Justice Cohen dissents joined by the Chief Justice. The dissent reasons that actions cited by the majority like “driving under the speed limit and stopping at a flashing yellow light at an unfamiliar intersection” are just as likely to show careful driving as they are to show impaired decision making. The dissent also points out that there’s a racial component here of driving while black in the Northeast Kingdom (that’s a little paraphrasing from me). The dissent would affirm the trial court’s order throwing out the stop. State v. Sinquell-Gainey, 2022 VT 19.    

To wrap up April 2022, we have a lone entry order on a hold-without-bail order issued on April 25. The main issue this time (there have been a few opinions in this case) is that a state’s witness’s unavailability postponed defendant’s long-awaited trial, so he argues that the trial court should have released him on appropriate conditions. The trial court reasoned that there must be some change in circumstances justifying review of the prior hold-without-bail order. Because the trial court concluded that defendant hadn’t quite gotten there, it declined to consider releasing defendant. On appeal, the three-justice panel concludes that the trial court wasn’t wrong and defendant will remain in state housing. State v. LaBrecque, 2022 VT 20 (mem.)

Comments