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| I am totally being framed. This is BS. |
Earlier this week, I found a chewed-up wooden doggy figurine on our bed in the morning. I accused "my wife's dog," Lucy of being the culprit, though in fairness, it might have been "my dog" Luna. My reasoning was that the figurine was on "Lucy's side" of the bed.
My wife, jumping to Lucy's defense, said, "Boy, Andy, what kind of lawyer are you? Whatever happened to 'innocent until proven guilty beyond a reasonable doubt?'"
I responded, "Sweetie. I'm primarily a civil lawyer now. It's more likely true than not, and Lucy is liable under that standard."
Lucy, for her part, objects to this kangaroo doggy court.
There is, as you know, a big difference in the standard of proof required for a verdict between civil and criminal court. But it's the in-between that gets a little murky.
Two cases this week. One entry order and one opinion. We'll start with the entry order not just because it issued first on Tuesday, but because it ties into the burden-of-proof-and-in-betweens bit above.
Defendant was held without bail. He's charged with eleven felonies alleging sexual assault of his daughter and stepdaughter over a period of twelve years. Seven of those counts carry a potential life sentence. In cases with a potential life sentence, when the evidence of guilt is great, there's a presumption of incarceration under this statute. The burden then shifts to the defendant to get the trial court to exercise its discretion and release the defendant or to impose bail. The burden of proof at this stage of the proceedings is closer to a civil burden though it's never been strictly defined.
What does "evidence of guilt is great" really mean? In practice, it means something more than "more likely true than not," something less than "beyond a reasonable doubt," but a strict definition may prove impossible. For example, SCOV has said in the past that it's the standard of proof articulated in Rule 12(d), which requires the prosecution to demonstrate that it has "substantial, admissible evidence as to the elements of the offense." That evidence is taken in the light most favorable to the State, however, with modifying evidence excluded. And then we ask the question whether said evidence can "fairly and reasonably" show the defendant is guilty beyond a reasonable doubt. Any questions?
The evidence-of-guilt-is-great-burden-of-proof point isn't really relevant to this appeal, but it's one of those burden-of-proof vagaries that comes up often enough that I felt like a few words about it were appropriate. In this case, the SCOV panel notes that defendant waived challenging the evidence-of-guilt-is-great part of the trial court's decision because he didn't appeal his first hold-without-bail order.
The challenge here is to the trial court's exercise of its discretion. Here are a few key terms: the trial court's discretion is "extremely broad"; SCOV's review is "strictly limited"; and all a defendant really gets is an "opportunity to be heard." Can you see where this is going?
Defendant argues that the trial court abused its discretion in denying his bail-review motion because he identified a responsible adult to supervise him, and he's not a flight risk or a risk to public safety. The SCOV panel disagrees. We get a brief review of the trial court's reasoning, which includes its determination of the appropriateness of the proposed supervisor and the threat defendant poses to public safety. The SCOV panel does not identify any flaws, and concludes that the trial court was well within its discretion in denying defendant's motion. State v. Strobel, 2024 VT 84 (mem.)
Friday's lone opinion deals with a different kind of discretion: determination of necessity in a takings-clause case. Whether a taking is necessary is a question of fact for the trial court and SCOV will affirm such a finding if supported by "any competent evidence." One might also see where this is going.
Appellant landowner appeals the trial court's determination that the taking by the State—for I-89 reconstruction—of its land was necessary. Landowner also contends that the State didn't negotiate like it was s'posed to before filing suit.
There's some procedural stuff about multiple appellants, placing appeals on hold, and incorporating other litigants' briefs on appeal, but we're going to skip that rabbit hole. Read footnote 2 if you're incorporating a fellow appellant's brief on appeal because that may not be permitted if you're the last one standing (like appellant here).
SCOV first takes up the necessity finding. In a nutshell, landowner argues that the trial court didn't consider all the applicable factors (see subsection one) or didn't explore them fully. SCOV essentially says, "Actually, the trial court did consider the factors and the trial court isn't required to go above and beyond and do everything landowner wants." For example, when landowner argues that the trial court should have weighed alternative designs, SCOV explains, "Nothing in the statute requires the trial court, in place of AOT, to review all the alternative options to the proposed project and choose the best one."
On the negotiation front, SCOV reasons that while the statute does require the State to make every reasonable effort to obtain the property through negotiation, the State is not required to engage in futile negotiations. Here, there was an offer and a rejection, without further engagement. SCOV concludes that the State met its statutory obligations here. Given that landowner's agent testified that the State "offered us a real low ball . . . laughable type offer," further negotiation was not likely to be fruitful. Accordingly, SCOV affirms. Agency of Transp. v. R.L. Vallee, Inc., 2024 VT 83.
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