Second Half o' May

If you can tell me the character 
Nick Offerman is portraying in 
this meme, you'll win a prize. 

By Andy Delaney

This post's title derives from its predecessor post. When we go uninspired, we do it right.  

One opinion issued on May 22; another opinion issued on May 29. I can hear the Count from Sesame Street in my head saying, "Ah ah ah ah. Two! Two opinions!" My internal world is a strange place just in case you didn't already know.   

It's Sunday evening, and I've got a busy week, so we're going for the soul of wit today. 

First up, we have a case about a guy serving a very long sentence for a brutal home‑invasion sexual assault from the early '90s. He's now on his seventh round of post‑conviction litigation. Here, he argues his sentencing lawyer dropped the ball by not digging into his background to find and present mitigation—childhood trauma and bad institutional placements, including time at a notoriously harsh juvenile facility. The trial court held a full hearing, heard from a therapist about what he reported and from a defense‑practice expert about what competent sentencing lawyering should look like, but wasn't persuaded. The trial court found there was no reliable proof the alleged traumas actually occurred, no solid foundation for the expert's criticism, and enough in the record to treat counsel's approach—leaning hard on punishment‑versus‑rehabilitation themes rather than airing out a messy past—as a reasonable strategic choice, even if it didn't exactly work.

On appeal, SCOV agrees for the most part. SCOV emphasizes the deferential standard for second‑guessing lawyering, points out this isn't one of those cases where counsel ignored a whole bunch o' obvious, easily available mitigation evidence, and highlights that the sentencing judge based the long sentence on the extreme facts of the crime, the devastating impact on the victim, and public-safety concerns. In that context, there’s no "reasonable probability" that more background would have led to a shorter sentence. SCOV also upholds the exclusion of a 2024 report on historical abuse at the juvenile facility as too remote and more or less cumulative on what the expert already told the judge. Finally, SCOV gently corrects the trial court on doctrine: ordinary civil claim‑preclusion rules don't govern these post‑conviction cases; this system uses specific repeat‑petition and abuse‑of‑the‑writ concepts instead. But that labeling error doesn't change anything because the ineffective‑assistance claim fails on the merits. This one gets affirmed. In re Bruyette, 2026 VT 18.

The past Friday, May 29, we have what we'll call a "day in court" opinion. I could probably get a little more clever—or more accurate—but where's the fun in that? 

Landlord brought a commercial ejectment (eviction) and back‑rent case. Tenant fought back: he answered, raised defenses, demanded a jury, pushed discovery, and filed multiple continuance motions, citing both discovery issues and PTSD‑related stress. The court ordered rent escrow, tenant didn't pay, landlord got a writ of possession, and tenant moved out—leaving only the money‑damages piece. The court set a February jury draw and trial. On the eve of jury draw, tenant tried for extraordinary relief, told court staff he'd been awake for days and was "going to sleep now," and then didn't show for jury draw. So . . . the trial court waited about an hour, granted landlord's oral motion for default, took a damages affidavit, and later issued a roughly $24K judgment.

Tenant appeals pro se. 

On appeal, SCOV says "you can't do that without following the default‑judgment rule." Once someone "appears" in an action, the rules of procedure require a separate hearing on at least seven days' written notice before a default judgment can enter, even if—as here—the party blew off a jury draw. No such hearing was noticed or held here, which is a due‑process problem, and the "but he got notice of jury draw, so that’s enough" and "no prejudice" arguments don't save it. The money judgment gets vacated and the case gets kicked back for a properly noticed default‑judgment hearing. SCOV also generally approves of the trial judge's discovery calls (the landlord's notarized interrogatory answers were "under oath" enough, and extra PayPal records weren't proportional) and declines to wade into the tenant's broader bias and judicial misconduct claims because—SCOV says—they weren't preserved or adequately briefed (look, I'd say the same thing). Westwardhos LLC v. Anatoly Glass LLC, 2026 VT 19.