Court sides with convicted rapist

1-9-16 Vermont:

WHITE RIVER JUNCTION — The Vermont Supreme Court sided with a convicted rapist when it announced Friday that Vermont will immediately adopt the so-called “prison mailbox rule,” which is already used by a host of other states and the federal courts.

Joseph Bruyette has spent decades filing appeals and motions from his jail cell.

The rule only applies to prisoners who do not have lawyers, and it requires courts to use the day those prisoners hand over legal notices to prison staff members to be mailed to the court as the official date they are considered “filed” for legal purposes.

Without such a rule, a prisoner could write out a notice of appeal, for instance, before what is typically a 30-day statutory period and not learn until after the due date had passed that the jail hadn’t gotten around to sending the form along, a situation which could trigger the court into automatically dismissing the appeal for lack of a “timely” response.

Bruyette had exactly that happen to his most recent appeal when it finally arrived in the mail at the Vermont Supreme Court clerk’s office. Bruyette is serving a 45- to 85-year sentence in Michigan for a 1990 conviction in a brutal rape that took place three years earlier in Rutland.

Undaunted by the failure of his appeal, Bruyette filed a motion arguing that because he was locked up (at the time in a Kentucky prison), and did not have a lawyer to keep track things on his behalf, his good-faith effort to hand over his appeal notice to prison staff for mailing should have served as the benchmark date used by the court.

In the six-page ruling released Friday, Vermont’s justices let the U.S. Supreme Court, which had already adopted the mail box rule for federal prisoners, do the talking, quoting from their decision which began, “The situation of prisoners seeking to appeal without the aid of counsel is unique … (those) prisoners cannot personally travel to the courthouse to see that the notice is stamped ‘filed,’” and often they cannot call before a deadline to see if the papers have arrived.

With the help of legal briefs filed in support of his position by the Vermont defender general’s office and Vermont’s prisoner’s rights office, Bruyette successfully argued that because the “vagaries of the mail” within the jail system and at the post office were out of his hands, he was put at an unfair disadvantage compared to those prisoners who do have lawyers.

“It’s about how you count the days (and) this just brings Vermont into line with pretty much the rest of the country,” Vermont Defender General Matthew Valerio said Friday after the announcement that Bruyette had prevailed. “It recognizes that prisoners have difficulties getting access to the courts.”

“The importance of this decision doesn’t really have to do with (Bruyette’s) case. It has to do with the general establishment of this rule,” Valerio said. “We thought it was important to weigh in on this because it has a global impact on inmates.” ..Source.. by Times Argus

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Shipping only male inmates out-of-state unconstitutional, judge rules

11-15-2014 Vermont:

Vermont’s practice of sending only male inmates to prisons outside Vermont is unconstitutional, a superior court judge has ruled.

In a 21-page decision issued this summer, Washington Superior Court Judge Helen Toor ruled that an inmate was denied equal protection under the Constitution because he was sent to prison in another state while his female counterparts were locked up in Vermont.

After a trial held in June, Toor ruled that the Department of Corrections failed to prove that it is constitutional to treat male and female inmates differently.

Vermont inmate Michael Carpenter, who was housed in Kentucky, brought the case. In her decision, Toor ordered that Carpenter be returned to Vermont.

Carpenter has been in prison for more than three years. He is serving sentences for violation of an abuse prevention order, driving under the influence, violation of probation and attempted escape, according to court documents.

Carpenter also has twin boys, Aiden and Brendan, who are nearly 5 years old and a fiancée, Dee Morse, who testified at the trial, documents show.

“The court cannot sanction DOC’s policy of sending male inmates far from home, regardless of whether they have close bonds with their young children, while keeping all women nearby,” Toor wrote.

Carpenter was first incarcerated in Vermont and played with his children weekly during visits, court documents show. When he was sent to Kentucky, the family could not afford to make visits.

There are no state subsidies for travel and no option for Skype, Facetime or other types of video conferencing from that facility, documents show. The Skype program that is supposed to exist is having “technical issues,” according to court documents.

Carpenter’s attorney, Dawn Matthews, argued that because his incarceration in Kentucky in essence prohibits him from any contact with his young children, it violates the federal Equal Protection Clause and the Common Benefits Clause of the Vermont constitution.

“The DOC policy of sending only men out of state is, for all practical purposes, equivalent to a regulation barring all contact with the inmates’ minor children,” the judge wrote.

DOC does not have a written policy on sending only men out of state, but does so because there are more men in the system, according to court documents.

It is DOC’s policy to keep inmates as close to their families as possible; however, it does not ask inmates whether they have minor children, according to court documents.

The DOC keeps no statistics on how many inmates are parents, but a recent study found 64 percent of in-state inmates were parents of minor children, according to court documents.

The decision cites national data that show that prisoners who are allowed to visit with their children are more likely to get a full-time job upon release and are less likely to commit new crimes or use drugs.

The DOC argued that out-of-state placements do not discriminate based on gender. The impact on families when men and women are incarcerated, as well as the need to manage the prison population, justifies the different treatment, DOC also argued.

DOC’s attorney, David McLean, argued that there is no constitutionally protected right to visitation. The state argued that by violating the law, inmates lose whatever rights the common benefits clause may provide.

Vermont since 1998 has housed about 500 of its approximately 2,000 prisoners in Kentucky and Arizona because state facilities are overcrowded. Private prison contractor Corrections Corporation of America operates those facilities. Many advocates argue that all of Vermont’s prisoners should be held in-state.

The criteria for sending a prisoner out of state is that he must be serving a sentence, cleared for physical and mental health, not involved in any programming and not eligible for work camp, according to court documents.

The judge acknowledged that DOC sends prisoners out of state because it lacks resources, but said that is not an excuse.

“Courts must at all times insist that unconstitutional conditions be remedied, even at significant financial cost,” she wrote.

“The court does not suggest that the solution is to necessarily send women out of state, only that the current practice of distinguishing between inmates based on gender is legally indefensible,” she wrote.

DOC Commissioner Andy Pallito did not respond to requests for comment for this story.

Suzi Wizowaty, executive director of the group Vermonters for Criminal Justice Reform, said the decision is another reason to end the practice of sending Vermont inmates out of state.

“It just confirms for a different reason that sending men out of state is a bad idea,” Wizowaty said.

The solution, she said, is to reduce the number of people in prison. Her organization is working on legislation to do just that. Wizowaty said prison overcrowding is not a DOC problem, but rather one for the Legislature to solve.

Lawmakers could, for example, make it easier for inmates to find housing so they are not waiting in prison, as is the case for more than 200 prisoners.

The state could also change penalties for nonviolent drug crimes so those crimes are not punishable by incarceration, she said. ..Source.. by Laura Krantz

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Convicted sex offender’s right to appeal upheld

9-3-2014 Vermont:

A man serving a sentence of 40 years to life for sexually assaulting young girls will have another chance to file an appeal after the Vermont Supreme Court ruled last week that the failure of his attorney was an “egregious example of injustice.”

Barry Babson, 52, of North Bennington, was convicted after a jury trial in Bennington criminal court of aggravated sexual assault and sexual assault. The charges were based on two separate police reports.

Two of the victims testified during Babson’s sentencing in 2005 and told the court they blamed themselves because Babson not only sexually assaulted them but their sisters and friends as well.

During the sentencing hearing, Babson showed no remorse.

“I don’t care what half the people think in this world. I am going to appeal this, so it won’t be over. If I have my way, we’ll be back at trial again. And again and again and again. And it won’t be over,” he told Judge David Suntag.

Babson was sentenced to serve 40 years to life, which Suntag said was one of the lengthiest sentences he had ever imposed.

In 2007, Babson filed a request for post-conviction relief, citing “ineffective counsel” in general and the admission of testimony by his wife and by a doctor who had examined a girl Babson sexually assaulted.

That appeal was dismissed in February 2011, and a second petition was filed in July 2011. In a decision filed on Aug. 29, Justice John Dooley, writing for the Vermont Supreme Court, said the second appeal “languished on our docket because of inaction by appointed counsel.”

The second appeal listed Mark Furlan as Babson’s attorney. The issues raised on appeal again posed questions about whether Babson’s trial attorney, Frederick Bragdon, should have objected to certain evidence and whether some witnesses should have been allowed.

The state filed a motion in support of Babson but only for the purposes of supporting his legal rights to due process.

In her motion, Bennington County Chief Deputy State’s Attorney Christina Rainville said Babson committed “unspeakable, heinous crimes” and said he was justly convicted by a jury.

Rainville said the Vermont Supreme Court acted correctly in upholding his conviction and Judge John Wesley did the right thing in appealing Babson’s first post-conviction relief petition.

“Any appeal that Babson would have filed from (Wesley’s) decision would have, no doubt, been denied because any appeal would have no merit. Nonetheless, however, Babson had an absolute right to an appeal and he never got one,” Rainville wrote.

Dooley wrote in the Supreme Court decision that Babson’s attorney, appointed by the Defender General, had not helped Babson preserve his appeal rights and said the help he got at the Supreme Court level was “only marginally better.”

“The failure here is not simply of the assigned (attorney) to timely file a notice of appeal but of the whole system thereafter to protect (Babson’s) rights,” Dooley wrote.

The high court reinstated Babson’s appeal. He was convicted of sexually abusing an 11-year-old girl multiple times throughout a period of several months. Prosecutor David Fenster, who is now Addison County State’s Attorney, said during Babson’s sentencing that Babson used to tell the girl he was sexually abusing her “because she was bad.” ..Source.. by Patrick Mcardle

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Federal judge rules that data sent through peer-to-peer file sharing is not private

11-13-2013 Vermont:

Some potential new legal precedence is being set by a federal judge in Vermont, after ruling that data shared via peer-to-peer file-sharing services should not be expected to be private.

The ruling came out of a case regarding child pornography, where the defendants attempted to have evidence dismissed based on the grounds in which it was obtained. The three defendants said that police scooped the pertinent data from a peer-to-peer network illegally, without a warrant.

In this case, law enforcement had made use of the Child Protection System, which is an assortment of software tools designed to track down child pornography online. The tools send out automated searches for files known to contain data of this kind, and then maps out matching files with an IP address, data and time, as well as various other details about the particular computer.

District Court Judge Christina Reiss denied the motion to have the scraped data be dismissed, saying that the defendants gave up any privacy they had by making the files available through the P2P service. Even though the police software was entirely automated, Reiss says that the data could have been obtained manually or by a member of the public just the same.

"The evidence overwhelmingly demonstrates that the only information accessed was made publicly available by the IP address or the software it was using," Judge Reiss explains. "Accordingly, either intentionally or inadvertently, through the use of peer-to-peer file-sharing software, Defendants exposed to the public the information they now claim was private." ..Source.. by Justin Kahn

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Tougher Child-Porn Law Would Make Viewing It a Crime

2-20-2013 Vermont:

A recent spike in arrests for possession of child pornography suggests Vermont is gaining ground in the battle against this cyber crime. Since December, state and federal prosecutors have announced the felony arrests or convictions of at least eight men accused of possessing lewd, graphic and frequently violent images involving sex with children.

Now police and prosecutors who handle these cases are urging lawmakers to close a loophole in state law that allows suspects to escape prosecution if they viewed those images over the internet but didn’t actually download — and thus “possess” — them.

Under federal law it’s already illegal to view pornographic material involving anyone under the age of 18. But Vermont is one of 21 states that has not outlawed it in state statute. As a result, state prosecutors say it’s more difficult for them to secure child-porn convictions than it is for their federal counterparts.

A bill coming up for discussion this week in the Senate Judiciary Committee aims to change that. S.19, sponsored by the committee’s chairman, Sen. Dick Sears (D-Bennington), would make it illegal to “access with intent to view” photos, videos or other depictions of sexual or lewd acts involving kids under 16.

“The problem is that our current law is based on how people used to view child pornography, which is a magazine they would hold in their hand,” says Christina Rainville, chief deputy state’s attorney in Bennington County. “It doesn’t reflect the current reality of how child pornography is looked at today, which is by surfing the web.”

The Bennington County state’s attorney’s office was at the center of a high-profile child pornography investigation last year involving John Dockum, a fifth-grade teacher in Bennington who was charged with possession of child pornography on his school-issued computer. Dockum consistently maintained his innocence and his attorney claimed he never viewed any of the 17 graphic images involving sex acts with children that were discovered in his laptop’s temporary cache, or others found by his wife on Dockum’s home computer. He never downloaded the images.

Prosecutors eventually dropped the charges against Dockum, who was fired from his teaching job. His lawyer accused investigators of damaging his client’s reputation by .continued. by Ken Picard

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