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.