An engineering report declares the Orleans County Courthouse usable for court trials but the judiciary has now decided to move all criminal trials of incarcerated defendants out of county anyway.

And the lawyers - both prosecutors and defense attorneys - are not happy with the decision or the judiciary’s communication on the issue.

“We didn’t learn until this past Friday that we had jury draw and jury trial dates set in Lamoille County for November,” said defense attorney Amy Davis of St. Johnsbury during pre-trial hearings in Orleans Superior Court on Monday.

According to Orleans County Judge Lisa Warren, the judiciary is concerned about juries being prejudiced against defendants by seeing security personnel escorting the accused in the tight confines of the Newport courthouse.

“If we can find a suitable alternative location we will do so, but it’s not just a matter of snapping our fingers,” said Judge Warren in her response. “A lot has to be looked into…”

But then Orleans County State’s Attorney Jennifer Barrett voiced her objection to moving inmate trials to another county.

“We don’t see how it would change from pre-pandemic trials to have an incarcerated defendant here,” said prosecutor Barrett. “They often use the second floor to house the incarcerated defendants either during jury draws or during jury trials and so it just seems like we’re not understanding what the change is that would not allow for incarcerated defendants now.”

Flawed Strategy?

Barrett also suggested that the judiciary’s strategy to hide the status of incarcerated defendants from juries was flawed.

“I’d also just note that as soon as the public realizes that we’re only trying incarcerated defendants out of county they’re going to realize that the defendants are all incarcerated anyways,” said Barrett.

St. Johnsbury defense attorney Corby Gary also expressed skepticism about the judiciary’s plan and its concern about juries seeing defendants with security officers.

“My opinion is, I don’t find that to be valid,” said attorney Gary. “I don’t see how that concern keeps the courthouse closed.”

Attorney Suggestions

Gary then suggested a strategy to balance the movement of the jury and the defendant.

“There’s an easy way to have the jury leave the courtroom (and) be off the floor,” said Gary. “Remove the incarcerated defendant to one of the side rooms then you can have people milling around or doing whatever they’re doing in the hallways. I don’t see how that would hold it up. And then, when it was going to be resumed, you just bring in the defendant first into the courtroom. Then you fill the jury back in.”

But Judge Warren said it wasn’t that easy.

“It’s not a court that’s equipped like some other courthouses where a defendant is able to be placed in a room separate from where jurors may walk by,” said Judge Warren. “The other thing is people can’t be milling around in the hallway and there’s a real limit on the number of people in the courtroom…But it’s really the appearance piece. I know that incarcerated trials have been going on for some time in this court building for years. And I don’t know how it was addressed earlier but there’s no milling around in the hallways now and there are no security rooms here for persons who are incarcerated.”

Engineering Report

The public has been largely restricted from the Orleans County courthouse even after Gov. Phil Scott lifted the COVID-19 state of emergency in the spring. Courthouse officials have said the restrictions were due to air quality concerns including a lack of acceptable HVAC (Heating, Ventilating and Air Conditioning) systems.

But according to court documents filed by St. Johnsbury Defense Attorney David Sleigh on Friday, those concerns are now being questioned.

Sleigh filed a motion with the court on behalf of his clients opposing the sudden move of trials out of Orleans County. The filing included an engineering report by “Engineering Services of Vermont, LLC” that was commissioned by the judiciary.

“Based on my review of the HVAC balance report (of) the Orleans Criminal Courthouse located in Newport Vermont, it is my opinion that the HVAC system is confirmed to be sufficient to provide the ASHRAE recommended for ventilation rates to support trials during the COVID pandemic subject to the following conditions:” reads the engineering report summary.

The report then lists 8 precautions including changing air filters every 90 days to 30 person limits in the courtroom, the installation of “CO2 monitors” in the courtroom and jury room and “HEPA” filters being installed in un-ventilated areas. The report also recommends the usual masking, distancing and handwashing COVID-19 protocols.

Unanswered Questions

Attorney Sleigh said in his motion that the report raised a lot of questions about the judiciary’s position.

“At a recent bench/bar meeting, Vermont’s Chief Superior Judge said that ‘he and staff had reviewed the engineering assessment of the Orleans Criminal Courthouse and, together they had determined the facility was not currently adequate to conduct trials of incarcerated Defendants,” wrote Sleigh. “The Chief Judge did not respond directly to questions as to whether the building was capable of trying out-of-custody defendants.”

“No jury draws are currently scheduled and few, if any, ‘in person’ hearings are being conducted in Orleans despite the fact that the Judiciary’s engineering study determined that the building was adequately ventilated and capable of hosting jury trials and hearings,” wrote Sleigh.

Judge Warren said she would note the attorneys’ objections on the record and that the judiciary is exploring possible alternate courtroom locations.

“If we do identify locations we will have another meeting about it and have a discussion,” said the judge. “For right now, we’re looking out of county for the incarcerated population.”

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