Judge Denies Defense Motion To Depose Courthouse Decision-Makers

Federal Building and Orleans County Court in Newport City.

NEWPORT CITY — A judge in Orleans County rejected a defense lawyer’s effort to question decision-makers in the judiciary, including Vermont’s chief judge, about COVID safety measures inside the courts.

In his order filed Thursday, Judge Robert A. Mello ruled that attorney David Sleigh cannot depose Chief Superior Judge Grearson, State Court Administrator Patricia Gabel, and Dr. Erin Bromage. Sleigh had filed a motion seeking to learn from the three officials how they arrived at courthouse decisions related to pandemic precautions.

Among those decisions is one to bar public access to the courthouses in Newport City. The inability to hold jury trials in the Newport City court, and the absence of an alternative location for trials, has both Sleigh and State’s Attorney Jennifer Barrett on the same page in a desire to learn how officials decided the delivery of justice.

Prior to Judge Mello’s decision, Barrett had filed her support for Sleigh’s motion.

The motion was part of Sleigh’s underlying effort to have the criminal charges dismissed against his clients whose cases were filed pre-pandemic because the courtrooms are closed. Hearings are happening before the judges in Newport through video conferences, but no trials are being scheduled there because no member of the public can enter.

Sleigh argues that his clients are being denied constitutional rights to a speedy trial.

Barrett opposes Sleigh’s effort to have charges dismissed but believes the depositions would be helpful in understanding how the judiciary officials made their decisions.

The judge refused to grant Sleigh the access, citing case law that notes such a request to depose “will be denied unless the party seeking it meets a burden of showing the evidentiary character and relevance of the material, its unavailability by other means, and its necessity for his trial preparation.”

He noted that in cases of misdemeanor crimes “good cause” must be shown before a judge can allow for depositions.

“The bottom line is that neither the Defendant nor the State has shown good cause for granting what appears to be an extraordinary request to secure the deposition testimony, and potentially other unspecified discovery, from a variety of state officials on an issue collateral to the Defendant’s trial preparation,” the judge wrote.

The judge did note that court processes are being impacted by decisions by the judiciary related to the COVID response, but that was not a sufficient reason to grant the deposition request.

He also wrote that subjecting the three officials to the deposition process would hinder the judiciary process as a whole.

“It appears that granting Defendant’s discovery request would unnecessarily divert the time of administrators, thereby further delaying and disrupting attempts to schedule criminal trials. There are defendants in virtually all of Vermont’s counties awaiting trial. Allowing the depositions of state employees responsible for rebooting criminal trials would unnecessarily detract from their ability to implement the trial the Defendant seeks,” Judge Mello stated.

He ruled that in order for Sleigh to hear from the three officials he could subpoena them during the hearing on his motion to dismiss the criminal charges.

Sleigh said that’s what he intends to do.

He said the rejection by the judge to his request did not surprise him, especially since he was asking a judge to grant him access to the chief judge.

“There’s something inherently difficult in trying to persuade any institution to submit to a critical examination of its own conduct,” Sleigh said.

He said the denial of his motion cost “my clients, the State, the Court and the public a thorough examination of the facts which have caused the cessation of jury trials.”

Sleigh took exception to what he called Judge Mello’s “analytical approach” to a special circumstance.

“This was an appeal for an extraordinary opportunity to address an extraordinary failure of the Court to provide core liberty rights,” he said. “With all due respect to Judge Mello, viewing our request as if it were routine seems deflective.”

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