MONTPELIER — The courts are preparing to hold back-to-back jury trials in May after the jury trial restart in Windham County fell through last month. Officials have greenlighted eight courthouses to resume jury trials amid the pandemic, but they don’t include those in Bennington County.
Windham County will get another shot at paving the way for the resumption of jury trials, with a jury draw set for May 17 in Brattleboro, according to State’s Attorney Tracy Shriver.
Three more counties have also scheduled jury selections next month: Windsor on May 20, Washington on May 24 and Rutland on May 26-28. The others that have gotten approval — Caledonia, Chittenden and Lamoille counties — will be up in June, said Vermont Chief Superior Judge Brian Grearson. But when — or where — the state’s first jury trial in more than a year will happen is left to be seen. Court officials and the public defenders’ office were expecting to see jury trials restart March 24 through a Windham County criminal case. But the dozen or so shortlisted cases began dropping off for various reasons until there was none left to try by March 19, three days before the jury draw in Brattleboro.
At least 100 people had been summoned for potential jury duty, Grearson said. They all had to be called off. The wait of defendants, victims and their advocates continued for the 13th month.
“I felt angry,” said Bennington public defender Kate Lamson. “I have clients who have been in jail for years, all the while maintaining that they are innocent. Our state government is failing to uphold the constitutional right to a jury trial.”
One of Lamson’s cases, chosen as a backup for the planned jury trial in March, ended up getting the trial slot. But Bennington County State’s Attorney Erica Marthage asked the court to postpone the trial, citing reasons that included her office’s concerns with the safety precautions in place.
Marthage told the court she understood the Windham County trial to be a voluntary opportunity, something she has also heard being referred to as an “experiment.” “Not a situation where my employees would be required to be in an environment engineered without our input, not in our courthouse and on such short notice,” she wrote in a March 18 motion.
‘Not an experiment’
After the Banner published Marthage’s statements, Judge Grearson said he disagreed with her comment that the March jury trial was an experiment. “This was not an experiment. This was an attempt to resume jury trials in compliance with all state and federal recommendations relating to the COVID virus,” he said, referring to the COVID-19 coronavirus disease. While addressing a defendant’s due process right to a fair trial, Grearson said, “we would not subject the defendant, attorneys, court staff or members of the public to an experiment relating to their safety.”
He provided the Banner with the Vermont Department of Health’s assessment of the judiciary’s safety plans around restarting jury trials. The text also referred to the state Building and General Services Department, tasked with evaluating whether the airflow in courthouses were up to safety standards:
“Both BGS and VDH have reviewed your plans to provide a protective environment as you open the Windham Court House for proceedings. According to the information you’ve provided, your plans are consistent with CDC guidelines for reducing the risk of COVID transmission in an indoor environment. Thank you for your careful attention to mitigating the risks of COVID transmission.”
Health department spokesman Ben Truman confirmed that the statement above came from Deputy Health Commissioner Tracy Dolan.
Multiple attempts to get a comment from Marthage weren’t successful.
Vermont’s Defender General, Matt Valerio, said he was surprised that last months’ trial restart didn’t push through given the preparations that had been made. Valerio said he’d even considered attending the Brattleboro trial from his base in Proctor, if his schedule allowed. It was going to be a significant event in the state criminal justice system during the pandemic, and the cases shortlisted for trial included ones handled by public defenders. At that point, Valerio said he’d already been vaccinated against COVID-19, though his decision didn’t depend on being inoculated. “I’m not concerned about going down there, to be honest,” he said.
But, Valerio said, he doesn’t question anybody’s health-related decision on whether to participate in the March 24 trial. “Reasonable people can look at the same thing and come to a different conclusion about what risks they’re willing to take,” he said. “The risks that were there were those that the public defenders were willing to take to try to get a resolution for their clients.”
Upcoming second attempt
As the next jury selection draws nearer, court officials are making plans that incorporate lessons they learned in the unsuccessful jury trial restart. Grearson said the judiciary wants a longer list of back-up cases to be tried. They would include civil cases — whose trials have similarly been on hold since March of last year — in the event all the criminal cases again fall through.
Last month, the restart plans crumbled for a variety of reasons: defendants either decided to plead guilty, their charges were dismissed or cases were disqualified because witnesses couldn’t travel to Vermont.
Shriver, the Windham County State’s Attorney, said that in her two decades as a prosecutor, she has rarely seen any guarantees that a scheduled trial will definitely proceed. She echoed comments made by Grearson and Valerio that many cases reach a settlement when both defendants and prosecutors know that a trial is imminent.
As to when Bennington County will see its next jury trial since February 2020, the timeline is still unclear. Grearson said court officials are still waiting for a building inspection report of the state courthouse, which he expects to receive before the end of April. The person who has come the closest to a trial in the past year, Bennington County defendant Reynald Carey, continues to be prosecuted. His attorney, Lamson, underscored that the Vermont Constitution says a defendant’s right to a jury trial is sacred. She has clients who have been in pretrial detention for years and are clamoring for a jury trial. Lamson is among the many around the country who have been following the trial of a former Minneapolis police officer charged with killing a Black man, George Floyd, during an encounter with law enforcement last May. The jury trial of Derek Chauvin, the former officer, is heading into its fourth week of proceedings in a Minneapolis courtroom that features social distancing, face masks and plexiglass dividers.
“If Derek Chauvin can have a safe and effective trial,” Lamson said, “there is absolutely no reason that we can’t do the same in our little state.”