137 th Annual Meeting Criminal Law Year in Review

Transcription

1 Vermont Bar Association 137 th Annual Meeting Criminal Law Year in Review September 24-25, 2015 Stoweflake Conference Center Stowe, VT Faculty: Anna Saxman, Esq. Matthew Valerio, Esq.

2 2015 Legislative Criminal Law Update By Matthew Valerio, Vermont Defender General & Attorney Sara Puls, Office of the Defender General Act 60 (S.9) An act relating to improving Vermont s system for protecting children from abuse and neglect. This act aims to improve the State s approach to preventing child abuse and neglect, and protecting children from abuse. Summary: Modifying the definitions of key terms, such as risk of harm, and sexual abuse in Title 33 to be more inclusive and consistent, and adding the definition of serious physical injury, Amending the mandated reporter statute, 33 V.S.A. 4913, to change the reporting threshold from reasonable cause to believe to reasonably suspects, requiring that mandated reporters personally report abuse and neglect, and clarifying that this must be done within 24 hours of first observing or receiving information about the abuse or neglect; Encouraging information sharing among the various professionals dealing with an abused or neglected child; Replacing the rigid custody hierarchy in 33 V.S.A with a best interests standard and a shorter, and less rigid, list of custody options for courts to consider; Allowing legally enforceable post-adoption contact agreements between adoptive and birth parents for children in DCF custody; Clarifying the jurisdiction of Special Investigations Units and what allegations DCF must report to law enforcement; Amending 13 V.S.A (cruelty to a child) to provide for an enhanced sentence if a child is killed, or suffers serious bodily injury or sexual assault; Establishing a legislative oversight committee that will sunset in 2018; Establishing a Working Group to recommend improvements to CHINS proceedings. Multiple effective dates, beginning on June 15, 2015 (DCF policies and procedures, legislative oversight committee, and CHINS working group). Rest of act is effective on July 1, Act 12 (H.270) An act relating to pretrial screenings and assessments

3 Summary: This act amends 13 V.S.A by adding the definitions of clinical assessment, needs screening, and risk assessment. 13 V.S.A. 7554c is amended to strike the language that requires a defendant to communicate with his or her pretrial monitor regarding the person s compliance with conditions of release. 12 V.S.A. 701 is amended to permit a State s Attorney to dismiss a citation issued to a person who has been accepted into a pre-charge program and to reissue a new citation with a later court date. The new citation is contingent on the person s performance in the program and is dismissed if the person successfully completes the program. The pretrial monitor is permitted to serve the person with the citation on behalf of the State s Attorney. Effective Date: May 1, 2015 Act 13 (H.483) An act relating to home improvement fraud Summary: This act attempts to fix the problems with 13 V.S.A. 2029, specifically the permissive inference which was struck down by the Vermont Supreme Court. see State v. Rounds, 2011 VT 39, 30, 189 Vt. 447, 22 A.3d 477 (holding that permissive-inference instruction constitutes error where it misstates legal rule involved allowing inference to be drawn that is not legally authorized). 13 V.S.A was amended to remove the permissive inference and attempts to make the statute constitutional. Effective Date: May 1, 2015 Act 14 (S.141) An act relating to possession of firearms No new policies were put in place by the gun regulation bill they have been in place in Federal law for years. What s new is that Vermont will now have laws to enforce the same things. Vermont police testified that, currently, if they forwarded cases to federal attorneys for prosecution, the U.S. attorney s office was largely uninterested. And the mental health reports were supposed to be happening anyhow, but Vermont wasn t complying. The key changes are:

4 Prohibits violent felons from possessing firearms and people with certain violent or drug dealing convictions to possess firearms (mirroring broader federal law that a carries a felony charge). The stated legislative purpose is to allow state law enforcement officers to prosecute cases federal officials turn down, but which may still present a danger to the public. Requires the timely submission of court records that disqualify individuals from possessing firearms by the state to the National Instant Background Check System database. It requires people with mental illness (found by a court be a danger to themselves or others) be reported to the FBI database of people prohibited from owning guns. The provision includes a legal process for people to have their right to have firearms reinstated. Creates a study group to investigate the viability of a suicide prevention program (modeled on the New Hampshire Gun Shop Project). Act 22 (H.62) An act relating to prohibiting a sentence of life without parole for a person who was under 18 years of age at the time of the commission of the offense 13 V.S.A was added to prohibit a court from sentencing a juvenile to a life sentence without parole, if the person was under 18 years of age at the time of the commission of the offense. Effective date: May 14, Act 1 (H.16) An act relating to requiring an inmate to report to the Sex Offender Registry prior to release from a correctional facility 13 V.S.A is amended to require a sex offender who serves his/her maximum sentence to register with the Department of Public Safety as a sex offender prior to the their release from a correctional facility, or within 24 hours of being released from probation, parole, furlough, or a supervised community sentence. Effective Date: February 25, 2015 (S.13) An act relating to the Vermont Sex Offender Registry

5 Problems this bill were trying to solve included: How do we determine who goes online and who s job is it to figure that out? What level of accuracy do we need to have in the registry? Can we post addresses online? What error rate is good enough for government work? The legislature decided it was ten percent when dealing with information posted online about sex offenders. The change will allow additional information to be posted on the state s online sex offender registry, most notably the street addresses of some offenders. After six years of trying to post perfect information, the Department of Public Safety said the standard was impossible to meet and convinced the legislature that a little bit of inaccuracy should be good enough. The errors that will be allowed are only for information deemed non-critical. No errors can be made in critical information, and all information about high-risk offenders whose addresses will be published must be 100-percent accurate. Key changes: If/when the DPS reports that the registry has: 1) no critical errors and 2) a less than 10 percent error rate for non-critical errors, then, the state may place the addresses of high risk offenders online. Added 13 V.S.A. 5405a Court Determination of Sex Offender Registry Requirements which now requires the Court to now determine, at sentencing, whether a defendant meets the requirements to be placed on the sex offender registry. If the State and defendant don t agree as to the applicability, the state must file a motion within 10 days of the entry of a guilty plea and the defendant may present evidence at sentencing as to the applicability of the registry. The State shall bear the burden of proving by a preponderance of the evidence the applicability of Sex Offender Registry requirements to the defendant under this section. No longer requires that the court forward to DOC/DPS: general physical description, fingerprints, or current photographs. Adds instructions to the Court to forward to the Department of Public Safety: the order (issued under the new 5405a procedure, see above). Creates a procedure to remove people erroneously placed on the registry. 13 V.S.A Effective Date: July 1, 2015 (H.105) An act relating to disclosure of sexually explicit images without consent, charging fees for removing booking photographs from the Internet.

6 Revenge porn can come about when two people who were once very close close enough to have taken naked or suggestive images of each other or filmed their sexual encounters end their relationship, one feels jilted, wants revenge, or something, and so they post the sexy images online. Previously, the remedy was a civil lawsuit filed by the victim. The legislature decided it should also have a criminal penalty. Under the new law, the person posting the images can be sent to jail and face fines, if any prosecutor manages to prove: A person violates this section if he or she knowingly discloses a visual image of an identifiable person who is nude or who is engaged in sexual conduct, without his or her consent, with the intent to harm, harass, intimidate, threaten, or coerce the person depicted, and the disclosure would cause a reasonable person to suffer harm. A person may be identifiable from the image itself or information offered in connection with the image. 13 V.S.A This bill also includes civil penalties to people who are posting booking photos online and charging a fee to have them removed: Removal of booking photographs from the internet; fees prohibited (b) A person who posts or otherwise disseminates a booking photograph on the Internet shall not solicit or accept a fee or other consideration to remove, delete, correct, modify, or refrain from posting or disseminating the booking photograph if requested by the depicted person. (c) A person who violates subsection (b) of this section shall be assessed a civil penalty of not more than $1, for the first violation and not more than $2, for each subsequent violation. Effective: July 1, 2015 (S.7) An act relating to bail determinations concerning a defendant charged with lewd and lascivious conduct with a child 13 V.S.A. 2602(f) is added to read: Conduct constituting the offense of lewd and lascivious conduct with a child under this section shall be considered a violent act for the purpose of determining bail. Effective Date: July 1, (S.115) Expungement

7 This new law offers a way for individuals to get rid of some or all of a criminal record. If your crime was committed before you were 25, you successfully completed the terms and conditions of your sentence, you haven t been convicted of any new crimes, you ve been employed or done public service work, any restitution owed has been paid, and a court finds expungement is in the interests of justice, your criminal record can be wiped clean. It can also disappear if the crime for which you were given a record is no longer a crime (as would now be the case with a conviction for possessing a small amount of marijuana). Expungement is not automatic; an offender must petition a court and be granted an order that the record be cleaned. 13 V.S.A is amended. Effective Date: Immediately. (S. 102) Asset Forfeiture and Animal Fighting A bill that started out as a measure to curtail what some said is growing dog-fighting in Vermont was hijacked by law enforcement and steered towards greater incentives for police and prosecutors to arrest people for certain crimes. The direction is exactly opposite to what s been happening in other states around the country, where widespread abuse of forfeiture laws have led to strict limits on the scope and application of incentives and the proceeds from the sale of assets seized during investigations. Up to now, Vermont s forfeiture laws, which have focused on drug arrests, had been far better than most. That s because Vermont law hasn t allowed forfeitures without a conviction for a crime and because all forfeiture proceeds went to the state s general fund, not the departments that seized the assets or the state s attorneys who prosecuted the suspects. While law enforcement failed in S. 102 to get the broad powers they wanted to seize a person s assets before a conviction, they did get a snitch provision that allows seizure of the assets of someone willing to talk with police to make a deal. And while law enforcement didn t get direct deposit into their individual departments accounts of the proceeds from the sale of seized assets, they will have a shot at snagging up to 45 percent of the forfeiture proceeds distribution will be set by a special governor s council made up largely of law enforcement representatives. Further, the asset forfeiture program will expand from drug arrests to include dog-fighting arrests an ominous development that will no doubt be of continued interest as all government, including law enforcement, looks to raise additional revenue as public funds tighten. See 18 V.S.A. 4242, 4243, 4244, Effective Date: July 1, 2015

8 (Budget) Qualified Immunity for Contractors 13 V.S.A is amended to read: INEFFECTIVE ASSISTANCE CLAIM (a) No action shall be brought for professional negligence against a criminal defense attorney under contract with or providing ad hoc legal services for the Office of the Defender General unless the plaintiff has first successfully prevailed in a claim for post-conviction relief based upon ineffective assistance of counsel in the same or a substantially related matter. Failure to prevail in a claim for post-conviction relief based upon ineffective assistance of counsel under contract with or providing ad hoc legal services for the Office of the Defender General shall bar any claim against the attorney based upon the attorney s representation in the same or a substantially related matter. (b) In the performance of duties pursuant to a contract with or providing ad hoc legal services to the Office of the Defender General, an attorney shall have the benefit of sovereign immunity to the same extent as an attorney employed by the Defender General.

9 PROBATION AND CONFRONTATION State v. Campbell, 2015 VT 50 State v. Campbell, 2015 VT 50 1

10 State v. Campbell, 2015 VT 50 State v. Campbell, 2015 VT 50 Convictions after guilty plea: 1. Aggravated assault 2. Sexual assault State v. Campbell, 2015 VT 50 PSI and psycho sexual eval ordered. Objections to PSI filed 2 sex offender conditions 2

11 Sentence 7 30 yrs, all suspended but 7 yrs. Standard sex offender conditions. Sex offender conditions Standard conditions Challenges generally No legitimate purpose related to rehabilitation or public safety. Unduly restrictive Improper delegation Notice 3

12 42. Submit to and pay for polygraph examinations. 44. Must reside and work only where approved by PO. 42. Submit to and pay for polygraph examinations. Inability to pay Inadmissible as evidence The polygraph condition serves a legitimate purpose. An investigative tool. State v. Freeman. See 28 V.S.A. 252(b) 4

13 Sufficiently related to: Goals of probation and compliance investigation. We emphasize what we are not holding that a vop complaint may be brought based on failed polygraph. 44. Must reside and work only where approved by PO. Appellate counsel argued: Unnecessarily restrictive. Overly broad Not reasonably related to rehabilitation or public safety 5

14 State: Whoa there. Not preserved! Objections raised at sentencing? Preservation Issues V.R.Cr.P. 35 Unlawful sentences V.R.Cr.P. 51 Formal exceptions to rulings or orders of the court are unnecessary Advance notice and no objections? State v. Freeman, 2013 VT 25 State v. Cornell, 2014 VT 82 Did I just concede error? Back and forth with the court. Judge modified condition. Thank you, Judge. 6

15 Gestures of courtesy, thanking a judge do not manifest assent. Defense counsel modeled respectful courtroom decorum The State s selective and limited reading of the transcript does not fairly reflect what happened. Back to the substance 7

16 44. Must reside and work only where approved by PO. Gives PO complete control over where can work. No guiding standards. Shall not be unreasonably withheld. Not good enough. No findings. Red Flags Undefined, vague terms Overbroad, open ended terms: etc. Equivocal terms: If prohibited by PO Categorical, one size fits all approach Burden shifting: You can always come back at a later time to challenge. State v. Alers, 2015 VT 74 Two witnesses arrive and see man with arms around woman s neck. Screaming, freaked out. Man leaves gas station. 8

17 911 Panicked call Officer arrives minutes later Woman shaking, very upset Having a hard time breathing. I was assaulted by my ex. At trial She told me what happened argued, grabbed, dragged. She fled, was scared, and felt pain. Borderline hysterical. 1. Where is the complainant?! 2. Hearsay! 3. Testimonial statement? Prior cross? 4. Confrontation! 9

18 Melendez Diaz, Crawford, Davis Confrontation Clause: a procedural guarantee. Not focused on reliability of evidence. Instead, reliability assessed in a particular manner. State v. Alers, 2015 VT 74 Hearsay analysis is not the confrontation analysis State s burden nontestimonial 15 minutes after initial report State v. Alers, 2015 VT 74 Several officers already there Asking: What happened? Distraught, but no physical injuries 10

19 State v. Alers, 2015 VT 74 Reversed and remanded for new trial. 11