The Three-Three Two

One opinion Friday (3/3) and one entry order. We’ll start with the entry order.

The Board of Bar Examiners (BBE) has a lot of discretion. Mr. M. applied for testing accommodations for the bar exam—specifically, time-and-a-half to take it—on the basis of a 2014 diagnosis and his testing accommodations ever since (high school, college, law school). He submitted supporting documentation, but not a Form 5 assessment. The BBE denied Mr. M.’s request for time accommodation, in significant part because of the missing assessment. Form 5 requires an assessment from a qualified professional and individualized recommendations as to why more time is needed. Mr. M. moved for reconsideration and the BBE denied that too. Mr. M. appeals. While SCOV acknowledges that the BBE could have done better on a host of points, SCOV ultimately concludes that the BBE “acted within its discretion in denying applicant’s request based on his incomplete application.” In re O.M., 2023 VT 14 (mem.).

This week’s opinion is another foray into COVID-19 and speedy-trial rights. In a nutshell, defendant was held without bail when “following a series of unfortunate events,” (I have to wonder if a clerk chose that phrase on purpose) defendant fired a 9mm—several times—from inside his home through the front door onto a porch where his adult son and his adult son’s two pals were standing. One of the shots hit defendant’s son, though the wound was not life-threatening. Defendant was charged with attempted murder (among other things). For some time—twenty months—the case went through pretrial stuff, including questions regarding defendant’s competency to stand trial. A month after the pandemic hit, defendant moved for a speedy trial. Eventually, he was tried and convicted of many of the lesser-charged offenses. Defendant appeals, arguing that his speedy-trial right was violated and that his convictions should be overturned. SCOV doesn’t go for it. SCOV takes the twenty-month delay off the top, attributes the COVID-19 delays to the state but doesn’t give them a lot of weight because, well, COVID-19, and affirms. Ultimately, SCOV is “persuaded that no speedy-trial violation occurred here principally because of defendant’s twenty-month delay in first asserting the right, the unavoidable delays caused by the COVID-19 pandemic, and defendant’s failure to allege that the State prosecuted him with anything other than reasonable diligence.” State v. Young, 2023 VT 10.