The cow says, "You can't handle the truth!"

It might be a Vermont thing, but cows get mentioned a lot during local court trials.

The reason for that is the “cows in a field” example that judges often read as part of their instructions to the jury. These instructions come at the end of a trial, after the attorneys have finished their closing arguments and have agreed on the contents of the instructions, which for the most part are the same from trial to trial but can differ depending on elements of the case. They endeavor to make clear to the jury that they are only to consider the evidence presented to them and make a decision based on what the law actually says. The instructions gives some guidance on how to view the evidence, what is and isn't evidence, types of evidence, and so on.

Here's where cows come in.

“Cows in a field” is used to explain the difference between direct evidence and indirect evidence, or circumstantial evidence as it's often called. A photograph of cows in a field is direct evidence that cows were in the field. Pictures of cow tracks in the field is indirect, or circumstantial, evidence that cows were in the field. According to these jury instructions, both types of evidence carry the same weight.

This is just a guess, but cows are used as an example because most court cases don't involve them. They're neutral and if you live in rural New England you've probably seen them before. They're certainly less prejudicial than bruises on a person's face being circumstantial evidence they were punched, or some other awful thing. 

Indirect evidence that cows frequent this field. Also, guess how many photos of "cow tracks" also feature "cow pies."

 

 Direct evidence that cows are in this field.

Shhh! There's a drug sweep going on!

Early Wednesday morning I posted to the Bennington Banner's Facebook page, “Operation County Strike 2 is underway.”

I did this from the back of a police cruiser as the two cops I was with were driving around looking for a suspect. Later I wrote an article giving a full account of my day, but a few minutes after making the Facebook post I noticed someone posted the comment, “Now why would you share this info?”

Following that, “Banner you guys must look at the walls in your office and say, " let's post about the drug sweap,(sic) yeah that's a good idea". Do you ever stop and think?” And following that, from the same person, “And at what point was this post a good idea to display for the drug dealers?”

People have to be forgiven for not knowing how drug sweeps work. I for one knew nothing about them until January when I saw the first Operation County Strike. The Banner kept people up-to-date via Facebook then, too, and over 40 people of the 63 police had on their list were arrested that day. The remainders were picked up later or were already in jail. A handful had left the state beforehand.

Police arrested all 16 of the people they were expecting to arrest on Wednesday, despite the Banner's Facebook updates. In fact, Bennington Police Chief Paul Doucette told me a few people turned themselves in who weren't even on the list. The same thing happened in January.

When the cops were going down Pleasant Street asking people if they had seen so-and-so, I had the feeling a lot of text messages were being sent after the police moved on. I'd be willing to bet there had been a great deal of texting once the sweep started, before we posted anything. Give those in the drug trade some credit.

The misconception is that these sweeps are some sort of stealth operation. The fact that police let the media know they're doing them tells me that they're not being viewed that way, and the fact they're arresting the people they're targeting likewise tells me they don't need to be. It could be because the police know who these people are, roughly where to find them, and have gathered all the evidence they feel they need. For at least one suspect, they called the person on their cell phone and basically made an appointment for her to come and be arrested.

Of course, one thing I didn't do was Tweet or post to Facebook where we were, where we were headed, and who the police were after at that moment.

I noticed the same reaction to the DUI checkpoint coverage over the weekend. DUI checkpoints are even less sneaky than drug sweeps. The law requires police to inform the public when they'll be conducted, and the flashing blue lights mean they can be seen from space, so they're not hard to avoid if you're so inclined.

Remote coverage and why search warrants are news.

On Tuesday, I heard federal agents were at Joe Tornabene's Auto Sales & Service in Pownal. How the story played out for the next few days would remind me how nice it is to be within walking distance of the court I usually cover, and how important it is to mind the weather.

I drove down to Pownal to see what was going on, expecting to learn little given how federal agents are. I found them to be quite pleasant, actually. They told me they were from the U.S. Treasury and gave me the phone number for their public information officer (PIO) in Boston.

While I was out of the office, the PIO returned my call and gave the Banner a statement saying that Internal Revenue Service (IRS) agents were at Tornabene's in the course of their official duties and they had authorization to do whatever they were doing there by a court.

Not a lot of information, but any time federal agents enter a private business and look through records, it's news. If you feel the IRS should be able to do that with no one watching, I disagree and I'm sorry for you.

Later, I spoke to the PIO directly and she told me which court authorized it. Whatever “it” was.

It was the United State's District Court District of Vermont.

That court has two offices, one in Rutland and the other in Burlington. You can access case files through a web service called Pacer, but only things that have been filed and are public show up.

After the Banner's last experience with search warrants, we came under the impression that a search warrant is public after it's been executed. So, I called the court office to see what I could get.

Nothing. Zip. Zilch. That could mean it doesn't exist, isn't showing up in the system, or for some reason unknown to me isn't public.

The people I spoke to were friendly and helpful, but anytime I've had to call a court or state's attorney's office outside of Bennington, I've felt like it's been more difficult. It's nice to be able to see the person you're asking information from. I feel like they'll go the extra mile for you if they're familiar with you.

Now, the trouble with court being so close to my office is I get a little too brave with the weather. Yesterday the forecast was for severe thunderstorms, and given the weatherman's track record in Bennington I looked at the sky, said “lol whatev,” then took a walk.

Bad move. While I was there the rain stopped fooling around. Our newest reporter, Khynna Kuprian, was kind enough to come give me a ride back, and while we were at court I showed her how to get information from the clerks in the event I'm off or on vacation. The public terminal uses a DOS-like operating system which can baffle the uninitiated.

The Vermont Supreme Court and the Vermont Environmental Court are the other courts the Banner has to follow remotely. They post their decisions online, and the attorneys in question are usually local, but again I feel like it would be better if I could walk in and talk to somebody. Then again, never having been there, maybe it's not so easy.

Changing beats?

With the newsroom losing two reporters in the last month or so, I'm firmly set in “wait and see” mode when it comes to covering courts. I've taken over the Bennington town beat, and until new people get hired I'm doing what I can to cover what I can.

I'm not complaining. For me, the challenging part of the job has always been finding things to write about, so having many beats to cover isn't so bad. What I'm waiting to see is whether or not I can cover both the town and the court and do both justice.

I was told that the town and court beats were once covered by the same person. It makes sense, as stories often overlap. Many times the former Bennington reporter, Neal Goswami, would be following a Bennington story until it went to court where I would pick it up. Most times it's best to have one reporter on a story, but it worked well enough.

The trouble with court is “court time.” One might think a place with a daily schedule of events would be predictable and easy to cover. Just drop in when something interesting is scheduled to happen, talk to who's scheduled to be there, and leave.

Nope.

You have to respect the court clerks and sheriff's deputies who make the place run as well as it does. They're short-staffed, and they manage a lot of people who, because of the situations being dealt with, are low on patience. I've always found the court staff to be as helpful as they can be, but I'm not the highest thing on their list of priorities.

And that means getting the information I need from court often takes a lot of time. Even if I'm covering a hearing where I have the background information and don't need paperwork, that hearing scheduled for 2 p.m. might not happen until 3 p.m., or even 4 p.m. A few times I've waited a few hours for a court hearing only to have it canceled. Stories can fall through on any beat, but most times you know that fairly early and can adjust.

I enjoy covering courts and hope to continue to do it, but if I have to pick between beats, I may lean on the side of change.

Which means I'll have to come up with another blog...I started this court blog with the notion of explaining court things that I couldn't fit into articles. Years ago I tried to get a gardening blog going, but didn't get much support for it (I wonder why?). For me, the trick for reporters and blogging is keeping some sort of distance between you and what you cover. A court blog was fine, because there's a lot that goes into how courts are covered that doesn't have a lot to do directly with the articles themselves.

I cover fish and wildlife, too, but I haven't been hunting in years. There's blog fodder for you, maybe even a series. Who said it was hard finding stuff to write about?

Dirty words and filthy language.

Last week I wrote an article about our local State's Attorney's legal opinion that so-called “happy endings” don't count as prostitution given how Vermont statutes define “prostitution.”

When reporting the news, you have to present to the reader a clear picture if what's being talked about, but that can be difficult when the subject matter is X-rated and your publication is PG-13. In this case, the crux of the story was a specific type of sex act, namely “happy ending massages” as they're called. I had approval to print “hand job” if needed, but I was able to avoid using that phrase. “...contact between one person’s hand and another’s genitals” is what we went with, which makes it pretty clear what's being talked about without being too lewd.

I bring this up because this is not the first time I've been confronted with this problem. A few years ago a teenager was charged in criminal court after he allegedly behaved lewdly in front of a younger child. I can't find a link to the original article, but the alleged act was something of a nature we wouldn't print. I wrote “lewd act” or something similar and left it to the reader's imagination.

And that's the problem I see with being vague. People's imaginations can take “lewd act” to all sorts of places, many I'll bet are worse than what actually was alleged to have happened. I've always felt that some level of specificity, even if disturbing, is better than nebulous suggestions. That said there certainly is a limit to the level of detail that should be provided and that's the kind of thing my colleagues and I discussed Friday afternoon when the “happy ending” article was written.

The problem we ran into with “hand jobs” is there's no polite term for it that really works. You could say “manual stimulation” I suppose. As opposed to automatic stimulation? According to an online dictionary, a secondary definition for masturbation would have fit, but when most people read that word they think of something else entirely.

We've printed “oral sex” in the recent past as part of a series of articles that garnered a lot of feedback from the community, and while I didn't write the bulk of them I did receive a prominent Benningtonian's opinion on our use of the phrase. He didn't care for it. To loosely paraphrase/misquote him, “We all know what prostitution is.”

Do we?

Not guilty!

Last week, or so, I got an email from a guy's mother telling me her son, who had been tried for domestic assault, was found not guilty by a jury. I knew that already and the case was on my list of things to do that day, as the jury had deliberated past deadline the day before. Later, the defendant himself came up to the office to let me know the jury's verdict. The mother's email was a little scratchy, but my conversation with the gentleman was fine, if brief.

I wish more people would contact me when their cases settle. Many times cases slip beneath my radar and their conclusions never get reported. One of the main reasons for this is how the court is organized and, to be honest, how I'm disorganized.

Monday in Bennington Superior Court Criminal Division is “arraignment day.” That's when arraignment hearings are held for all the cases where there's no imminent danger of the defendant fleeing or getting into more trouble. All the arraignments are on a list and it's a simple matter of asking the clerks for certain case files. The court also has an “extras” list. These are folks who, for whatever reason, need to be arraigned right away. Extras can come on any day, usually around 1 p.m.

There is no list of resolved cases. Sure, some are scheduled for changes of plea or sentencing, but they're not always listed as such and they come sporadically, making it easy for them to slip past the media.

I've been working on a way to track the cases I write about and perhaps it's time I doubled down on my efforts, but it would be nice if defendants, or their attorneys, let me know, politely, when their cases resolve. A few months ago I began putting the word out to defense attorneys I have a rapport with to feel free to let me know when one of their cases settles. Obviously I don't expect to hear from either defendant or attorney when there's a conviction.

We often hear that the first article “gets splashed on the front page” while the follow-up gets buried in the back, but it's been my experience that most court news ends up on page two, even the initial article. Maybe by “front page” they mean highest in our website's “most viewed” section, which is dictated entirely by readers.

Why and how we cover cops and courts.

I get the feeling many people wonder why and how the Bennington Banner covers local court and police stories. Many feel we do it because it “sells papers.” Well, I can't argue that based on website hits and Facebook likes and comments, lurid crime stories get a lot of attention from the public. I can tell you, though, my paycheck doesn't change based on how much a story is read.

Others seem to view the Banner as a public shaming tool. This gets coupled with the view that by writing about a court matter I've somehow given it my blessing. Hopefully this Q and A list will address some of these items.

Why does the Banner cover courts?

The police and courts have a lot of power, and any group with a lot of power needs to be watched by the public. The justice system has the power to take away your freedom and make decisions that drastically impact the lives of those around you. It's human nature that when people with power are not being watched, they tend to abuse that power, however fair-minded they might be.

Why doesn't the Bennington Banner wait until cases are resolved before reporting on them?

The court can take away your freedom before you're convicted.

After you enter a not guilty plea a judge can decide to release you on conditions or lock you up while the case is pending. There are rules and criteria they have to follow, but the judge still has a lot of power power, and it gets used. A judge can order you to obey a curfew, not go to a certain place, and not speak to certain people, even your own family members. They can require a lot of other things, too, but like I said in a previous post, conditions of release are worth their own entry.

Where does the Bennington Banner get its information?

Most of the time the information we print comes from police affidavits. An affidavit is a narrative basically saying why the cop thinks you did whatever crime you're being cited for. The cops give the affidavit to prosecutors who decide which crimes are actually being described before submitting it, along with charges, to a judge. The judge then reads the affidavit and makes sure what's being said fits what's being charged.

Once a judge finds “probable cause,” on the charges, you can be arraigned and your freedom can be restricted.

The affidavit becomes accessible to the public after the judge finds probable cause. Usually I see it after the arraignment hearing his held. The court clerks show me the file and if I want I can get a copy of it for 25 cents per page. Anyone can do this, it's not a special privilege of the media.

Why is the Bennington Banner accusing people of crimes?

It doesn't. I report that other people are accusing people of committing crimes and that based on those accusations the state has restricted a person's freedom.

When I write “According to the affidavit, the woman told police her boyfriend hit her in the head with a closed fist,” that means a woman told police her boyfriend hit her in the head with a closed fist, and that the police wrote that down in an affidavit that was then used to justify restricting the boyfriend's freedom.

Of course not all of the information in an affidavit is 100 percent accurate and when I learn of an error I seek to correct it, or we follow the case to its resolution. The Banner's phone number is public and I put my email at the end of every article and I welcome defendants input on a case's resolution. Truth be told, however, most people's attorneys do not like it one little bit when their clients talks to the press. Still, I've never refused an attorney who felt inclined to speak to me.

I'm fully aware that when people read about accusations they convict the person in their minds. I wish they did not, I wish they kept an open mind, but that they don't is a poor reason to not report on something.

Why did the Bennington Banner report on this case and not that one?

There is no set policy on what kinds of court cases we cover and which ones we don't, however there are some general practices we follow. When I look at the court calendar, I look for felony charges because they are the more serious sort of charge a person can face. Some misdemeanor charges also catch my eye, namely animal cruelty and child abuse, but let's say someone vandalized the Bennington Monument or one of the street moose/catamounts and didn't do enough damage to be charged with a felony, I would still report on that.

To sum up, the reason we report on the courts is to ensure some level of accountability for an institution that has a great deal of power and uses it to affect the lives of common people on a daily basis. People need to know if the justice system is working or not.

I'm sure there's more questions and I'd be happy to answer them. Leave a comment or email me at kwhitcomb@benningtonbanner.com or send them via Twitter @Kwhitcombjr

Life in prison for stealing candy!? No, not really.

“life in prison!! for embezzlement, but 5yrs for murder..Vt laws are whacked!!!!!”

That was a comment left under an article I wrote a little while ago about a former route supervisor for the Bennington Banner being charged with embezzlement after he was accused of taking money from the newspaper vending machines. The state filed a “habitual offender” enhancement against him because he had at least three prior felony convictions.

When the state seeks a habitual offender enhancement I write something like “If he is convicted of a new felony, he could face up to life in prison.” That “life in prison” bit, no matter how I qualify it, throws people off. Still, it has to be mentioned because while a life sentence is rare, the fact the defendant is technically facing life can be used against them when the judge sets conditions of release.

Release conditions are their own kettle of fish, so without getting too deep just remember that when a judge is thinking about releasing you while your case is pending one of things he or she thinks about is how likely you are to show up to court later. A life sentence can be a strong incentive to flee, so being charged as a habitual offender can mean tighter release conditions than someone else accused of the same crime, but not of being a habitual offender.

Each criminal offense statute carries limits to how long a person can be jailed for being convicted of it. “Up to life” does not necessarily mean a person will get life any more than a person will get 10 years for embezzlement. What judges often do with habitual offenders is they set the maximum beyond what the statute would normally allow while keeping the minimum bellow the unenhanced maximum.

For the state to be able to file a habitual offender enhancement the defendant needs to have at least three felony convictions on their record. Pretty much any prior felony goes. They can all come from one incident or multiple instances and they do not have to be the same type of crime. Property crimes, felony DUI, assault, they all count. When they occurred does not matter. The felonies can also be enhanced themselves. For example when someone gets convicted of misdemeanor domestic assault, their next domestic assault charge will be a felony even if it would not normally have been. That enhanced domestic assault felony can be one of the felonies the state uses to lay the basis for a habitual offender claim.

Before any sentencing the state has to actually prove it was the defendant in question who committed the prior felonies. The last time I saw this happen it was right after a jury convicted a man of violating a restraining order. He had the option of having the trial in front of the jury that just convicted him or the judge. He picked the judge, who agreed with the state. Challenging a habitual offender claim is often a long shot as the defendant is arguing with documents. When a person gets a criminal history it comes with a lot of identifying information about them. Height, weight, scars, tattoos, etc. all get recorded. Not to say those papers are never wrong, but it's rare.

Habitual offender rules are often called “three strikes and you're out” laws. I don't have much to say about how well they work or don't. I know you can find an anecdote to support or decry pretty much anything the court does, but the idea behind habitual offender enhancement makes sense; if a person keeps committing serious crimes they should face more severe penalties. One key thing to note about the habitual offender enhancement is that unlike a mandatory minimum sentence it grants a judge more leeway rather than restricts it.

Alphabet soup.

A few years ago Vermont created special police units to investigate sex crimes and child abuse. "NUSI" stood for Northwest Unit for Special Investigations and was based in St. Albans. "CUSI" was Chittenden Unit for Special Investigations and was located in Burlington. 

Bennington had to take a different route with its acronym. It was Bennington Special Victims Unit (BSVU) because Bennington Unit for Special Investigations (BUSI) sounds a lot like "boozy." 

When writing news we try to avoid making "alphabet soup." "The SCOV's ruling on the DOC's handling of VCRs and VAPOs said the BPD was in violation of the ABCD..."

Bureaucracies love acronyms like birds love nests and it's confusing. Here are some common acronyms I run into when covering courts. 

VAPO: Violation of an Abuse Prevention Order. An Abuse Prevention Order (APO) is fancy talk for a restraining order. If someone is harassing you you can get a court order limiting their contact with you and if they violate the conditions of the order they can be charged with a crime which is the VAPO.

VCR: Violation of Conditions of Release. After a person is arraigned most times they are let out of court on conditions while their case is pending a resolution. These conditions can be light such as show up to court when you're supposed to, stay out of trouble, and let the court know your mailing address. They can also be restrictive and not allow defendants contact with certain people or keep  them under a 24-hour curfew. Violate these conditions and you can be charged with the crime "violation of conditions of release." On its own it's a fairly minor offense but you have to come to court again and more restrictive conditions can be put on you. Keep violating them and you can find yourself posting bail or being held in jail until the case resolves.

VOP: Violation of Probation: Think of it as an extended conditions of release that comes after a conviction, only it can include a person not following through on whatever program the court ordered the offender to complete. Not showing up to substance abuse counseling sessions, harassing the victim, being charged with more crimes, etc. 

P&P: Probation and Parole. These are field offices within the Department of Corrections (DOC). For whatever reason I rarely hear about parole matters. Mostly what I see is VOPs and furlough violations. Furlough is not the same as parole. This link from the DOC explains the difference.  


L&L: Lewd and Lascivious conduct. This can encompass everything from waiving your genitals at strangers to groping them. It's not as bad as sexual assault but it's still a serious felony. There's also Lewd and Lascivious Conduct with a Child which is even more serious.

ISAP and IDAP: Intensive Substance Abuse Program and Intensive Domestic Abuse Program respectively. Many sentences from plea agreements require offenders to complete "programming." Basically they're classes on how to not to do what you did to end up in the court system to begin with.

OC: This is more of a cop one. It stands for "Oleoresin Capsicum" or pepper spray. Mace, in other words although like Taser that's a brand name. I used to take issue with calling it "pepper spray" because I didn't think peppers were really involved but my research tells me they more or less are, so...

My limited experience covering schools leads me to believe the education system is worse when it comes to acronyms but that's another blog. 

 

    

Order in the court.

The first thing one usually learns about court, be it criminal, civil, family, or probate, is that it doesn't work like it does on TV. Most of what happens in a courtroom is confusing and boring to the average person and rarely is it dramatic.

First, a little about myself: My name is Keith Whitcomb Jr. I live in Bennington, Vt. and began working at the Bennington Banner, a small daily newspaper, in 2008. Since 2009 I have been covering Bennington Superior Court; mostly its criminal division, but I cover all courts where there is a Bennington County connection. I have no legal training outside what I've observed and learned in the past four years, but I decided this blog might be a way to better inform people about some of the things I typically write about for the paper. Things like what's the deal with bail bond amounts, habitual offender enhancements, conditions of release, and so on. Based on comments I see posted to the Internet, emails and calls I've received over the years, I think some of the finer points of the legal system are unknown to many.

 Let's keep in mind that when I'm explaining how an aspect of the legal system works I'm not condoning or condemning it. My goal is to simply tell people how something works and maybe explain the rationale behind it. I'm also not interested in passing judgment over people or their cases. That's not my role and I'm happy with that. I'd like to update this blog at least once a week but in any case I plan to inform people of updates through Twitter. You can follow me there @KWhitcombjr.