Dueling press events Wednesday highlighted a disagreement over whether a law enforcement officer in an officer-involved shooting should be allowed to view the body or dash cam footage of the incident before being questioned by investigators. 

The Washington County State’s Attorney Office on Tuesday and the Vermont Attorney General’s Office on Wednesday announced that separate reviews by each prosecutor’s office conducted into an August officer-involved shooting in Montpelier cleared that officer of wrongdoing.

Both probes ruled that Montpelier Police Cpl. Chad Bean was justified in his use of deadly force in firing his rifle and striking 62-year-old Mark Johnson in the torso, killing him.

The investigations found that Bean feared for his life when Johnson waved what later turned out to be a pellet gun, refused orders to drop it, and then pointed it in the corporal’s direction during the early morning of Aug. 9 on the Spring Street bridge. 

However, while the conclusions were the same, the two independent offices took different paths in getting there. 

The Montpelier Police Department allowed Bean and Officer Christopher Quesnel, also at the shooting scene, to view dash cam footage from Quesnel’s cruiser that captured the shooting. 

[The Montpelier Police Department released the videos of the shooting on its website following the press conference Wednesday.]

The Vermont State Police, the statewide agency that investigates all officer-involved shootings, did not interview either officer. It recently changed its procedure and won’t interview officers in such cases if they have already seen body cam or dash cam footage of the incident.

Meanwhile, Washington County State’s Attorney Rory Thibault conducted a court inquest during which, he said, both Bean and Quesnel voluntarily testified behind closed doors about their actions in the shooting incident.

Thibault this week sought the release of the transcripts of the testimony of both officers; a judge granted that request Wednesday morning. 

Thibault held a press conference Wednesday afternoon at Montpelier City Hall, a day after issuing a release stating that he found that Bean was justified in his use of deadly force.  

The prosecutor said Wednesday that he wanted to interview the officers and have their testimony released in an effort to provide “transparency” to what transpired in the shooting and the events leading up to it.

“I thought it was important to be able to fill in some of the gaps that existed in the video,” Thibault said, “and to hear what the state of mind and what the emotions of those officers at the time was. Ultimately, I did that in the hopes of getting a more complete view of the situation.”

He added, “I really thought the public would question why those officers were not spoken to and I think would leave something missing from the equation if we did not hear their account.”  

Not obtaining the officers’ accounts, Thibault said, “would deprive us of the complete and total understanding of the situation.” 

Thibault added that officers frequently interview people involved in crimes.

“We don’t not interview those individuals merely because they talked to somebody else, they watched an incident occur on someone’s camera phone video or they had access to extraneous information,” he said. 

“I think it’s imperative,” Thibault said, “and it’s the function of investigators and prosecutors to make, initially, reasonable decisions about the credibility of someone.”

He added, “Of course everybody has the right to maintain their constitutional right to remain silent and say nothing at all.”  

Montpelier Police Chief Tony Facos, speaking at the same press conference, defended his department’s decision allowing the officers to view the videos, even though it went against state police protocol. 

“That was a departmental decision based on our counsel, and also we believe it’s an important practice so that the officers have an opportunity to be accurate,” Facos said. 

The police chief said state police had requested that the department not allow the officers to see the video. “They did tell me that, there was some discussion,” Facos said. 

He added that his department was still looking at the department’s “protocol” going forward in such incidents. 

“There’s a lot of things to consider,” he said, adding it is a “national conversation.” 

The Montpelier police chief said the officers involved in the shooting, who were put on paid leave initially after the shooting, returned to duty about a week and a half later. 

Shortly after Thibault and Facos spoke to the press at Montpelier City Hall, Maj. Dan Trudeau of the Vermont State Police took questions from several reporters outside the agency’s headquarters in Waterbury.

Trudeau said the Montpelier officers involved in the shooting had been “offered” a chance to give a statement to state police investigators under the condition that they not view the videos ahead of time.

The major said the change in procedure for state police followed several officer-involved shootings, causing agency leaders to look deeper at their “tactics” and “investigations” in such cases.

“As a result of consulting with several people, and we still are to this day, we did change course and we’re going in a manner where we are not allowing officers that are directly involved in a shooting to preview their video,” Trudeau said.

“The theory behind that is that we’re just trying to get the officer’s true recollections and perspective,” Trudeau added. “We don’t want them to regurgitate what they’re watching on a video.” 

He added that he knew there were varying opinions on the practice.

“It’s probably a 50/50 split on investigative agencies doing it one way or another,” he said. “We feel like this is the course that we’re comfortable with.” 

Trudeau said he believed it was the most “transparent” way to conduct an investigation. “This is a clean way to interview these officer,” he added. 

Vermont Attorney General TJ Donovan backed the state police’s position. 

“The best practices is not to show video cam footage to the police prior to the interview,” the attorney general said. 

“In no other investigation would we give a person of interest or suspect the ability to review evidence before interviewing them,” he added, “and I don’t think the police should be treated any differently.” 

Donovan announced findings that the officer was justified in his use of force in the Montpelier case in a press release issued Wednesday morning. 

Asked why his office didn’t take part in a joint press conference with the Washington County State’s Attorney’s Office, as happens in many cases involving officer-involved shootings in Vermont, Donovan replied that his office doesn’t always hold press events in such cases.

Later, he added, that there were “probably a variety of reasons, one of which will probably be a disagreement about the type of investigation that was conducted.” 

As a result, Donovan said, his office let the Washington County State’s Office hold its own press conference while his office sent out a press release. 

Lia Ernst, a staff attorney with the American Civil Liberties Union of Vermont, said Wednesday that her organization backed the state police’s position.

“Our position has been and continues to be that officers should not be able to view body cam or dash cam footage prior to submitting an initial statement or report about the incident in question,” Ernst said. “The reason for this is that an extensive body of evidence shows that when you view something, it changes your memory.”

The state police procedure is also playing a role in another case from earlier this year in Burlington that included a video of an officer, Corey Campbell, punching a man who died days later.

A judge in that case ordered the release of that video following a lawsuit brought by the Burlington police union on the officer’s behalf seeking to see it.

Dan Gilligan, president of the Burlington Police Officers’ Association, said Wednesday that Campbell had not been interviewed by the state police. 

Gilligan said he didn’t understand or agree with the VSP’s policy to not talk to officers who have reviewed their footage. He said body cameras might pick up things that the officer did not see, and vice versa. 

“You are going to have questions, if there are inconsistencies, that you are going to want to have answered,” Gilligan said. “If you’re looking for the facts and the truth, that seems to be the best way to do that.” 

Chittenden County State’s Attorney Sarah George, whose office is conducting an ongoing review of that case along with the Vermont Attorney General’s Office which is doing its own separate review, said her office will not be interviewing Campbell.  

“Our review was to determine whether criminal charges were warranted. We would never interview offenders in an effort to determine whether criminal charges should be brought, regardless of whether they are a civilian or a law enforcement officer,” she wrote in an email. 

“It creates an insurmountable conflict when a prosecutor interviews a potential defendant and then attempts to use that statement against them in a prosecution, assuming they would waive their constitutional rights to remain silent.” 

Shooting justified

Thibault, during his press conference Wednesday, provided a timeline of events that ended with the shooting on the Spring Street bridge, near the roundabout on Main Street in Montpelier. 

The incident leading to the shooting began around 5 a.m. on Aug. 9 when police were called by a tenant at the Pioneer Apartments on Main Street, just a short distance from Spring Street, for a report that Johnson had been trying to enter a unit there and he had a knife.

Johnson lived at the Pioneer Apartments. 

Shortly after Bean and Quesnel arrived at the scene, Thibault said, Johnson left the building, eventually making his way to the bridge.

There, the prosecutor said, both officers repeatedly ordered Johnson to put down a weapon he held in his hand. The weapon was later determined to be a pellet gun, though both officers said it looked like a real gun. 

Thibault said throughout the fast-moving incident both officers spoke to Johnson.

“Let’s figure this out. I’m happy to talk to you,” Thibault said Quesnel told Johnson at one point. “What’s going on, talk to us.” 

Bean told Johnson he wanted to get him help, adding, “It’s never too late, Mark, it’s never too late,” according to Thibault.

Around 5:15 a.m., according to Thibault, Johnson began pacing on the bridge, then appeared to be climbing on the railing, as if he was going to jump.

Thibault said Bean then shouted out, “Mark, get down, Mark, get down, get off the bridge.” 

Johnson got down, squared himself toward the direction of the officers, Thibault said, and then began lifting his right arm, “appearing to aim the weapon at Bean and/or Quesnel.” 

At that point, the prosecutor said, Bean fired the first of two shots striking Johnson. 

Bean, Thibault added, then said, “He just pointed it right at me.” 

Quesnel responded, “I saw that,” the prosecutor said. 

Johnson, shot once, remained standing holding the gun and pointing at the officer, prompting Bean to fire a second shot that struck Johnson again in his torso, Thibault said. 

This time, according to the prosecutor, Johnson fell to the ground.

The officers, Thibault said, began administering CPR on Johnson until rescue medical workers arrived. Johnson was taken to the hospital where he was pronounced dead.

The video released by Montpelier Police Wednesday captured the shooting from dash cam of Quesnel’s cruiser, which was parked in the roundabout, a short distance from the bridge. 

Both officers can be heard in the videos, though it’s difficult to make out anything Johnson is saying.

The nearly 80 pages of transcripts released Wednesday of the officers questioning during the inquest proceeding included both officers saying they felt in great fear as Johnson was waving the gun and then pointing it in their direction.

“I felt as though I was in danger for my life,” Quesnel testified. “I’ve never been so scared in my life.” 

VTDigger Aidan Quigley contributed to this report.

Read the story on VTDigger here: Montpelier officer was cleared in shooting. But the probes took different paths..

After completing a lengthy review process and clinching enough funding, the Vermont State Police has a new fleet of drones that it has begun deploying for missions across the state. 

At a press conference Wednesday, Lt. Cory Lozier explained that the 11 new drones will be used primarily for mapping car accident scenes, and search and rescue missions. However, they could also be used for criminal surveillance, when the appropriate warrants are obtained. 

The program was deployed Oct. 11, Lozier said. Since then, the drones have been used a handful of times to map out crime scenes and car accidents. The drones are able to give police a helpful, and literal, birds eye view that can cut down the time it takes to survey a scene. It helps police, Lozier said, but it’ll also help Vermonters — car accident scenes will get cleaned up much faster now that it takes 30-40 minutes to map a scene with a drone. Before, this usually took hours.    

“It was a no brainer,” Lozier said. “We’re very fortunate to have the program.” 

Through federal grants, the state police was able to purchase the 11 new drones for a total of $105,000. However, that price tag does not include continued upkeep and pilot training. This is not the first law enforcement agency in Vermont to own and use drones, but the state police will be sharing its fleet with other departments. It has three large drones, which cost $20,000 to $30,000, and eight smaller drones for about $2,000 each, Capt. Michael Manley said.

Vermont has been debating for years about how it should regulate the use of drones by law enforcement in the state, which is part of the reason the fleet took so long to establish, Lozier said. Privacy concerns led legislative discussions, and since then state laws have been enacted determining how police can use drone footage.

The Vermont State Police have also created its own drone policy, which regulates how the drones can be used. Both the small and large drones can take video and still images, also in infrared heat detection. These videos and images can only be stored by police for 180 days, unless they’re being used in a criminal investigation, and surveillance footage has to be approved by a warrant within 48 hours of it being taken. The policy also dictates that the drones cannot be employed with weapons, listening software or facial recognition technology. 

“We are very aware of the privacy issues,” Lozier said. “We will not fly over somebody unless there’s a public safety risk and we’re trying to save lives. We know what we can or can’t do with them. And we’ll abide by that.” 

Since the program got up and running, Lozier said he’s gotten calls everyday from other state police requesting their use. He said if the demand for this drone technology is as high as it is now, he expects the fleet to grow soon. 

Read the story on VTDigger here: State police get 11 drones for accident mapping, rescues and surveillance.

A Vermont man has been sentenced to death for his role in an attempted prison break in North Carolina that left four correctional employees dead.

A jury sentenced 30-year-old Mikel Brady, who was born and raised in Randolph, to the death penalty Tuesday after a little more than an hour of deliberation, according to the Virginian Pilot.  Brady had been found guilty of the crimes by the same jury just a week earlier.

The attempted escape took place in October 2017, when Brady allegedly gathered supplies from his job at the prison’s sewing plant, and then worked with three other inmates at the Pasquotank Correctional Institution to brutally kill four prison employees and wound several others with hammers and scissors, as Seven Days reported. After the attacks, Brady allegedly hopped a fence, ultimately surrendering to staff just outside the facility.

Brady grew up in Randolph with what his lawyers described as an abusive father and teenage mother, the Virginian Pilot reported. He was diagnosed with both bipolar and post-traumatic stress disorders at a young age, but was reportedly encouraged by his father not to take his medication.

“As the twig is bent, so goes the tree,” his attorney, Thomas Manning, said to jurors, quoting a proverb, according to the Virginia Pilot.  

His criminal record began to grow in his teenage years, when he was part of a drug and burglary ring responsible for scores of break-ins around Randoph, as Seven Days reported.

In 2008, he was arrested for stealing 209 sticks of dynamite from a quarry in Bethel, according to Seven Days. In 2009, he was charged for a South Royalton home invasion that left the victim with a severe brain injury.

Over the next several years, he was charged with more than 20 crimes, ultimately fleeing to Mexico, where we was captured, extradited and sent to prison in Vermont in 2009. 

He was released in 2012 shortly after serving his minimum sentence, with a judge citing his good behavior behind bars as reason for his release, according to Seven Days. After that, Brady began working at a Randoph butcher shop, playing in a softball league, and taking his medications. After a few months, his girlfriend became pregnant with his son. 

But that stability did not last. In 2013, Brady was caught attempting to poach deer and fled Vermont, where he was supposed to be on furlough. He ultimately moved to North Carolina, where in February he was pulled over for a seatbelt violation and shot the state trooper who caught him four times, Seven Days reported.

The officer survived the shooting, but the incident still landed Brady with a 24-year sentence that he was serving at Pasquotank when he allegedly planned the escape.

In North Carolina, there are 142 other people on death row. Brady will become the 143rd. However, the last execution the state actually carried out was in 2006 — with many of the proceedings having been stalled by lawsuits over racial bias and lethal injection drugs. It is unclear how long Brady might wait before having his sentence carried out.

The list of North Carolinans who have faced death row is one of the largest nationwide. The list of Vermonters, however, is far smaller. The state abolished the death penalty in 1972, and hasn’t sent anyone to death row since. 

One man, Donald Fell, faced the possibility of death row for the alleged kidnapping and murder of a Vermont grandmother in 2000, but ultimately took a plea deal of life in prison late last year.

The Virginian-Pilot reported that the prosecutor in Brady’s case told the jury that if they opted for life without parole, rather than death row, it would be “open season” on the state’s corrections officers.

“I understand he’s got one life,” said District Attorney Andrew Womble, “but he took four.”

Read the story on VTDigger here: Man who fled Vermont furlough gets death penalty in N.C. murders.

BURLINGTON — Attorney General TJ Donovan is “very close” to completing his review into Burlington Police officer Cory Campbell’s altercation with Douglas Kilburn, who died days after being punched by Campbell in March. 

State’s Attorney Sarah George said Wednesday that her office had completed its assessment and was waiting on Donovan’s office to complete its review of Kilburn’s death, which received substantial public and media attention.   

“They informed me a couple of weeks ago that they were ‘very close’ – so I’m hopeful that we can announce our findings shortly,” George said by email. 

As prosecutors finish their review, the head of Burlington’s police union, Dan Gilligan, says he is frustrated and confused by the length of the review as officers have already been cleared in other more recent use-of-force incidents. 

Kilburn, 54, died days after his interaction with Campbell, which took place in the ambulance bay of the University of Vermont Medical Center. His death was ruled a homicide by the chief medical examiner, a finding that means that Kilburn would not have died if he had not been punched by Campbell. 

Body camera footage of the incident showed Kilburn punching Campbell before Campbell punched him back, leaving Kilburn bleeding heavily from his face. Kilburn became increasingly agitated when Campbell yelled at him to “shut the fuck up and leave.” 

The Burlington Police Department handed the investigation over to the Vermont State Police, who concluded their investigation and gave it to Donovan in May. Campbell has been on administrative duty since shortly after the incident. 

“It’s just unfortunate for him to be caught in the middle of whatever this is,” Gilligan said. “I couldn’t even guess what the issue is and what’s taking so long. This is unheard of as far as I know.” 

George said in June both the State’s Attorney’s Office and the Attorney General’s Office were reviewing the case, and that the State’s Attorney’s Office tries to complete their reviews in a couple months. 

George said Wednesday that while her office had completed its review in its typical timeframe, she was waiting on Donovan to complete his review. Donovan spokesperson Lauren Jandl said the case remains under investigation and would not comment further. 

The AG’s office has already announced it would not be bringing charges against officers in two cases that happened months after the Campbell/Kilburn altercation. Donovan cleared a Montpelier officer who shot and killed a Montpelier man who was armed with a pellet gun in August and a Vermont State Trooper who injured a Quechee man who pointed a shotgun at the trooper in May. 

Gilligan said that he was confused about why the Campbell case was taking longer than the reviews in those cases. 

“This is just an anomaly and it’s certainly a concern, but this seems like the only time it’s ever happened and I don’t understand why,” he said. 

Campbell is “frustrated” with the length of the review, Gilligan said. 

“He’s definitely frustrated with the whole thing,” Gilligan said. “I mean, we all are, but especially him because it impacts him the most.” 

The Montpelier case has sparked a debate about whether officers should be allowed to view their body camera footage before speaking with investigators. Donovan and the Vermont State Police believe officers should not be influenced by the footage before testifying, while local police departments think officers should be allowed to refresh their memories.

Campbell was not interviewed as part of the state police investigation. George also did not interview Campbell, saying her office would never interview potential offenders in an effort to determine whether criminal charges should be brought. 

BPD Deputy Chief Jon Murad declined to comment on the Vermont State Police policy to not interview officers who had reviewed their body camera footage but said the department often interviews witnesses who provide and have seen video evidence. 

“Videos tell part of the story, and we often speak to witnesses who provided video because those witnesses might have additional information to provide outside them,” Murad said. 

Murad said the department had not received any kind of formal information about the status of the investigation, but had heard that Donovan is waiting for one report in the case. Murad said he did not know the contents of that report. 

“Any time we have a complicated incident like this, we want it to be reviewed thoroughly, but we also want it to be reviewed quickly and fairly,” he said. “That’s in the interest of the public, department and justice.” 

Murad declined to comment on whether this review had met that standard. 

“You tell me,” he said.

Read the story on VTDigger here: AG said to be ‘very close’ to decision in Burlington police case.

A mother and daughter hailing from the Bronx, New York, who prosecutors say set up a drug-dealing operation in Central Vermont, including buying a home in Morrisville as a base, have been sentenced to jail time on federal drug charges.

And, according to federal prosecutors, the home the two paid $85,000 for with proceeds from drug dealing has been forfeited to the federal government.

Esperanza Delarosa, 52, and her daughter Susan Mateo, 28, were both sentenced in federal court in Burlington on charges of conspiring to distribute heroin, fentanyl, and oxycodone, the U.S. Attorney’s Office in Vermont said in a release.

Judge Christina Reiss sentenced Delarosa on Thursday to 69 months, or almost six years in prison, followed by four years of supervised release, according to the release. Prosecutors had been seeking nearly twice that prison term. 

Earlier this month, Reiss sentenced Mateo to six months behind bars followed by three years of supervised release, the release stated.

In addition, the judge ordered that Mateo’s home in Morrisville, which prosecutors say was “the proceeds of, and directly facilitated, the defendants’ unlawful distribution of controlled substances,” be forfeited to the federal government.

Also, according to court records, Delarosa and Mateo agreed to forfeit to the federal government a 2011 Ford Escape Limited, $8,626 in money from their bank accounts, and $3,258 in cash seized from Delarosa.

The mother and daughter were arrested on Jan. 23, 2018, court records stated, on charges of conspiracy to distribute heroin, fentanyl and oxycodone. 

With the assistance in the investigation from confidential informants, law enforcement purchased suspected oxycodone and heroin from both Mateo and Delarosa, court records stated. Later lab testing revealed the heroin was laced with fentanyl.

As part of the drug dealing operation, the release stated, Delarosa required people to deposit funds in a bank account rather than provided her with the cash.

The investigation also showed that on Sept. 21, 2017, Mateo paid a $10,000 deposit to a foreclosure auctioneer for the right to buy a house on Randolph Road in Morrisville, according to the release, with Delarosa later paying $75,000 more to complete the purchase. 

Delarosa was described by prosecutors as the organizer and leader of the operation. 

Attorney Maryanne Kampmann, who represented Mateo, declined comment Thursday. Brooks McArthur, a lawyer representing Delarosa, could not immediately be reached Thursday for comment. 

U.S. Attorney for Vermont Christina Nolan said in a statement the case highlighted the cooperation between the many law enforcement agencies involved in the investigation.

Read the story on VTDigger here: Mother, daughter in Morrisville drug operation heading to prison.

A man who borrowed money from the town of Westminster to renovate what ultimately became a failed slaughterhouse is now on the hook for the more than $545,000 that the town says it’s owed.

Daniel Mandich, of Walpole, New Hampshire, who owned the now-defunct Westminster Meats, agreed this week to the six-figure settlement, after he failed to pay back the money he borrowed to open the facility. The case was heard in in Cheshire Court in Keene, New Hampshire.

Mandich’s misadventure in meatpacking began in 2010, when he borrowed $600,000 to renovate an existing building into a USDA-certified meat and poultry processing facility, according to court documents.  

The loan was secured by Mandich at former Gov. Jim Douglas’ urging, according to a 2009 press release. Douglas stepped in on Mandich’s behalf, securing expedited approval for a $648,000 state Agency of Commerce and Community Development grant to Westminster, which the town loaned him on favorable terms to open the facility.

But from early on, the business struggled to stay afloat, court documents show. As early as 2011, an email from the town’s counsel identified Mandich as being “substantially” in debt. In 2013, Mandich missed his first payment to the town.

Then in 2014, things got much worse for Mandich: his facility was hit with an $11,000 fine from the Agency of Natural Resources for untreated wastewater from his livestock slaughter operation that was being sent straight into public waterways. In 2017, he got hit with another fine — this time from the Attorney General’s Office: $86,000 for similar violations.

That summer, a foreclosure sale for the building was first advertised — and in 2018, the town filed suit for the money that Mandich owed. 

Mandich asked for the case to be dismissed, alleging that the statute of limitations had passed, rendering the claim invalid, according to the settlement agreement.

He said the 2011 email from the town’s counsel noting his “substantial” debt made it clear that the six-year statute of limitations had passed well before the town made its claim in 2018.

The town, however, objected, arguing that the period for the statute of limitations did not begin until 2015, and thus had not run out by the time it made its claim. The court ruled in the town’s favor.

Since Mandich had taken out two mortgages on the facility, through Mascoma Bank, the bank could sell the property as it saw fit, according to the agreement. But when it was bought at public auction, the proceeds were not more than the total from the mortgages, leaving the town with no revenue from the sale — despite the fact that the slaughterhouse’s property and equipment were used as collateral in the loan.

Now, though, they expect to get back all the money — plus interest, attorneys fees and expenses — that Mandich owes.

In the settlement agreement, the court noted that it was unclear how the town reached the $516,000 base figure that it said Mandich owes. The judge ruled that a hearing will be set at a later date to determine the correct amount.

Read the story on VTDigger here: Westminster slaughterhouse settles with town over $500K-plus debt.

Editor’s note: This piece from the SCOV Law Blog is by Elizabeth Kruska.

In re A.M., 2019 VT 79

In re: A.M. is a good example of, “sometimes it makes sense to do something in order to get it done, but it isn’t necessarily OK to do that.” 

The basic facts are this. Mom and Dad are the parents of A.M. They all used to live in Colorado. Then Mom and Dad filed for divorce and after the divorce, Mom moved to Vermont with A.M. Mom’s family is from Vermont, so this move makes sense. A.M. spent big stretches of time in Colorado with Dad.

Several years later Mom started to struggle with substance use, and came onto DCF’s radar. A child in need of care or supervision (CHINS) case was filed. It’s not clear where A.M. lived initially while the CHINS case was pending, but several months in DCF decided to recommend that she go live with her dad in Colorado as a resolution to the case.

The proposal to move A.M. to go live with her dad was contested, and the court heard evidence on this over the course of three days. A few months later the court issued a written ruling indicating that even though Mom had made a lot of progress, it was in A.M.’s best interest to continue to live with her dad. The order included provisions for parent-child contact between Mom and A.M. It also included a provision that costs of transportation for A.M.’s visits with Mom would be shared, with Mom responsible for 75% of the costs.

And this is where, if it was a movie, there’d be that record scratch noise, and everyone’s heads would turn.

That’s because this isn’t something anybody in the case asked for or expected to come out of the hearing. This is something Mom appealed, and which SCOV reversed.

There are a number of complicated things that happened here. 

First of all, there was a valid divorce decree out of Colorado, and until the CHINS case was filed, that order was what ruled the day with this family. The Uniform Child Custody Jurisdiction Enforcement Act, or the UCCJEA, is a fabulous set of statutes that spring to life when there is a child custody-related decision to be made, and when there are multiple states involved. The opinion doesn’t go into this, so I’ll be brief. When jurisdiction starts with the child’s home state, which was Colorado at the time the divorce order issued, that state retains jurisdiction until it gives it up to another state. 

Mom moved to Vermont and A.M. went with her. The CHINS case was filed about five or six years after they moved. When the CHINS case was filed, Colorado gave up jurisdiction to Vermont since that had become A.M.’s home state. However, the original Colorado divorce order was still an effective order.

When the court ultimately decided to discharge custody of A.M. to Dad, that acted as a modification of the Colorado order. The court also said that since A.M. was back to Colorado that they should take back jurisdiction for future modifications and enforcement.

A CHINS proceeding can have the effect of modifying a family court order. It happens pretty frequently, actually, if there is a CHINS case connected to a family with an existing domestic order. That’s because if a CHINS case is filed and the merits proven, the court is required by statute to issue a disposition order. The controlling statute requires the court to make an order related to custody for a child in the best interest of the child. If there’s a domestic order, like a divorce, sometimes a CHINS disposition goes back to the original domestic order. But if that’s not in the best interest of the child, the court can make a change, which may have the effect of modifying the domestic order.

The court can also order parent-child contact, including parameters around that contact, like whether contact should be supervised.

The court is limited, though, with respect to other issues, like child support or other cost allocations. That’s because CHINS authority is very limited. The Legislature meant for juvenile court to deal with issues of child protection, not all matters of child custody; that’s why we have family court. 

So, SCOV found here that although the CHINS disposition order, which acted as a modification to the existing divorce order, was fine, going the extra step of apportioning costs was not allowed by statute.

The other part of this, is that none of the parties had notice that this would be a part of the order. Also, none of the parties asked the court to make an order regarding costs. If they knew, they could have prepared evidence for the court so the court could make necessary findings on the matter.

So, this gets reversed and sent back to the trial court to issue a new disposition order without the cost sharing provision.

I get what the trial court did here. This case lasted over a year. The disposition hearing stretched out over three days over the course of several months. The court made a disposition order that was in A.M.’s best interest but then returned jurisdiction to Colorado. If there was going to be an issue over who was going to pay for transportation, Colorado would have to hear it. That could take a long time, could cost money, and could have the effect of A.M. not being able to see her mom until that issue was sorted out. It feels inefficient, but the court’s options are limited by statute. 

Read the story on VTDigger here: SCOV Law Blog: A CHINS disposition order oversteps its authority.

Ice cream maker Ben & Jerry’s, and parent company, Unilever, are being sued for deceptive and false marketing of their products.

Former gubernatorial candidate and Lake Champlain International executive director James Ehlers filed a class action suit against the companies Tuesday, on behalf of Ben & Jerry’s customers. 

Ehlers alleges that Ben & Jerry’s is falsely marketing the premium ice cream as a sustainable product. Consumers, he says, purchase the premium ice cream believing the company is buying milk from dairy farms that are engaged in humane agricultural practices. 

But the way Ben & Jerry’s’ milk is sourced is not in line with “happy cow” marketing promotions, the lawsuit alleges. Only a fraction of the farm suppliers meet the so-called “Caring Dairy” standards.

In the complaint, Ehlers argues that consumers are drawn to Ben & Jerry’s ice cream because they see it as a socially and environmentally conscious brand. But that hasn’t been the case since the company’s acquisition by Unilever almost 20 years ago, he says.

“The goodwill generated by Ben & Jerry’s prior reputation for being socially and environmentally conscious was a valuable and significant component of Unilever’s acquisition of the brand, allowing Unilever to capitalize on a growing market of conscious consumers,” attorneys for Ehlers write in the complaint. 

A spokesperson for Ben & Jerry’s did not respond to a request for comment Friday.

The complaint says the brand’s operations and marketing are very different under Unilever than they were when the company was run by Ben Cohen and Jerry Greenfield.

Ehlers alleges that because of the deceptive marketing, Unilever is able to sell more of products, charge higher prices, and take market share from competitors, thereby increasing profits.

On the Ben & Jerry’s website, Ehlers alleges, the company described its milk as coming from “happy cows” raised at “Caring Dairy” farms, with a link to a page describing the requirements of the “Caring Dairy” program. The description says the requirements apply to all of the milk used in Ben & Jerry’s products.

He notes, however, that the site recently took down a claim that the “Caring Dairy” program is “required for all farmers” after a Washington, D.C., nonprofit sued the company for misrepresentation.

What Ben & Jerry’s isn’t telling people, Ehlers says, is that only a portion of the milk meets the requirements. The suit alleges that “many, if not most” of the milk comes from “factory-style, mass production operations.”

Ehlers argues that these production methods involve intensive cow confinement and extensive antibiotic use, “which does not comport with consumer perception of “happy cows” or the “Caring Dairy assurances Unilever makes.”

The complaint says that reasonable consumers rely on the reputation of manufacturers and marketing representations in making purchasing decisions, particularly when it comes to food.

The suit argues that Ehlers and other members of the class action will “continue to suffer injury” if Unilever’s conduct does not stop.

“Plaintiff Ehlers would like to continue purchasing the Ben & Jerry’s Products in the future,” the complaint states. “But as a result of Ben & Jerry’s wrongful acts, Plaintiff Ehlers and other reasonable consumers can no longer rely on the truth and accuracy of Ben & Jerry’s Products.”

Ehlers is seeking restitution for the misled consumers, and a requirement barring the company from using the “Caring Dairy” or “happy cows” promotion on its products. His complaint also calls for a jury trial.

“Under the circumstances, it would be against equity and good conscience to permit Defendants to retain the ill-gotten benefits that they received from Plaintiff Ehlers and the Class members, in light of the fact that the Ben & Jerry’s Products they purchased were not what Unilever purported them to be,” the complaint concludes.

Read the story on VTDigger here: Ben & Jerry’s sued for deceptive marketing in ‘happy cows’ case.

Rutland City Police Chief Brian Kilcullen said he is still considering whether city police officers involved in a fatal downtown shootout with a suspect last month will be allowed to view any video of the incident. Vermont State Police have advised against release of the video to officers. 

“All parties have been involved in the discussion over the last several weeks while the investigation has proceeded,” Kilcullen said Friday.

The issue of whether officers facing use of force probes should be allowed to view any body or dash cam videos before being questioned by investigators has prompted disagreements between state police, the agency heading those investigations, and local law enforcement departments. Last week, the Montpelier Police Department allowed officers involved in a fatal Montpelier shooting to review video before being questioned — against the express wishes of the Vermont Attorney General’s office.  

In the Rutland case, Christopher G. Louras, 33, was killed, according to police, after exchanging gunfire in downtown Rutland on the morning of Oct. 8 following a short pursuit in the Rutland Shopping Plaza parking lot.

Christopher G. Louras is the son of former longtime Rutland City mayor Christopher Louras. Four officers fired on Louras in the shooting in which he also shot at the officers, according to police.

Police said earlier that morning Louras also fired into the front entrance of the city’s police station before he was spotted more than an hour later by police and exchanged fire with the officers.

The body of Louras’ cousin, Nicholas Louras, 34, of Rutland, was found later that same day in Salisbury. A death certificate says he died of gunshot wounds to the head and neck. The document said Nicholas Louras’ death was a homicide.

Police have said the deaths of the two cousins are linked, but haven’t revealed why they believe that other than the two are related.

Nicholas Louras is the nephew of both Christopher Louras, the former mayor, and David Allaire, the city’s current mayor.

The officers who exchanged gunfire in downtown Rutland with Christopher G. Louras included three members of the Rutland City Police Department and one officer from the neighboring Rutland Town force.

The Rutland City Police Department members were Sgt. Adam Lucia, a seven-year member of the department, Sgt. Kenneth Mosher, a 12-year veteran of the force, and Cpl. Elias Anderson, who has been with the department for four years. The Rutland Town Police Department member was identified as Deputy Chief Ted Washburn, a six-year veteran of the department.

Rutland Town Police Chief Ed Dumas said Friday that his department did not capture any body cam or dash cam footage of the shooting, referring further questions to Vermont State Police.

Kilcullen, the Rutland City police chief, said only one of the city cruisers captured dash cam video of the shooting.

That cruiser was located about 20 yards behind Louras’ vehicle, which had got stuck on a railroad crossing on the northern edge of the Rutland Shopping Center parking lot.

The city police chief added that he was aware there are differing points of view of whether to allow police in officer-involved shootings to review video footage before they are questioned by investigators.

“I can appreciate both perspectives and that’s why we’re involving others in the discussion,” said Kilkullen, who added state police have advised against allowing officers to view the video before being questioned by investigators.

The issue is a new one for the department, he said, as the last officer-involved shooting involving a city police officer took place before the department had dash cams.

Earlier this week, Montpelier Police Chief Tony Facos defended his decision to allow an officer who shot and killed 62-year-old Mark Johnson on the Spring Street bridge to view dash cam footage of the incident, despite state police advising against it in that case as well.

As a result, state police did not interview Montpelier Police Cpl. Chad Bean as part of the probe.

Both the Vermont Attorney General’s Office and Washington County State’s Attorney’s Office cleared Bean of any wrongdoing in the shooting in which investigators say Johnson pointed a weapon, later determined to be a pellet gun, at the police corporal. 

Facos said at a press conference Wednesday that he allowed Bean to view the video so he could provide an “accurate” account of what had happened. 

Maj. Dan Trudeau, who heads the Vermont State Police criminal division, said at his own press event Wednesday that state police changed its procedure about a year ago.

He said the department no longer interviews officers in use-of-force investigations if they had viewed videos of the incident, citing concerns that those officers may “regurgitate” what they saw on the videos instead of relying on their perceptions at the time.

Vermont State Police investigates all officer-involved shootings in the state. The Vermont Attorney General’s Office and the state’s attorney from the county where the incident occurred then conduct independent reviews of that investigation.

Trudeau, of the state police, said this week that his office is still trying to piece together details of the Louras case, and are awaiting forensic and digital testing results on such items as computers and cell phones.

He added that he couldn’t comment on whether the case is drug-related, though Gov. Phil Scott, speaking at a regular weekly press conference last month indicated that it may be. 

Also, the Louras family released a statement last week thanking the community for its support, and raising the specter that drugs did play a role.

“It is our hope that those who wish to help will support the Mentor Connector’s work, especially with families touched by the opioid crisis,” according to the statement from the family. 

“Our family was filled with love and opportunity, and it did not stop the curse of drugs and its heartbreaking impact,” the statement added. “No one is immune. Through the support of the Mentor Connector, we hope to help others who might otherwise face similar threats.” 

Christopher Louras, the former mayor, has declined further comment.

Correction: An earlier version of this story misidentified the office that allowed officers to review video in a police-involved shooting in Montpelier. It was the city police department.

Read the story on VTDigger here: Rutland chief weighs viewing of video in Louras killing.

After Preet Bharara was forced out as U.S. Attorney for New York’s Southern District in the first months of Donald Trump’s presidency, he turned his legal expertise to gigs as a podcaster, CNN analyst and law professor. While those may seem like steps down for a star prosecutor, the intervening years have given Bharara plenty to talk about.

Bharara’s tenure at the Southern District was marked by a series of high-profile government corruption and white-collar crime cases. His predecessors there include both Rudy Giuliani and James Comey. His firing in March 2017 followed a confusing about-face by the president, who had initially told Bharara he’d keep his job. All of which is to say, Bharara has opinions about how the Trump administration’s behavior is being checked by the justice system and the public. 

He’s carefully tracked the Mueller investigation, discussed the cases against Michael Cohen and associates of Rudy Giuliani, and more recently analyzed the impeachment developments in the U.S. House. Along the way, he’s amassed more than 1 million followers on Twitter, and his podcast Stay Tuned has at times been the most popular in New York state. Earlier this year, he published his first book, Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law.

Bharara will deliver the University of Vermont’s annual George D. Aiken Lecture on Thursday, November 14. Ahead of his appearance in Burlington, he spoke to VTDigger about why investigators so far have struggled to incriminate the president — and how the current impeachment inquiry is different. This conversation has been edited for length and clarity.

VTDIGGER: I’m curious about the role of your old office in the case against the president. You were let go presumably so that Trump could appoint someone who might be less aggressive in investigating him. But the Southern District of New York has gone after his lawyer Rudy Giuliani; it’s been fighting to get the president’s tax returns. Wasn’t this what the president was trying to avoid by firing you?

Preet Bharara: You’ll have to ask the president if he didn’t get what he bargained for. But you’ve got to remember, that place is full of professional, independent-thinking folks who do their job without fear or favor, as the oath requires. 

People don’t always understand, the U.S. attorney himself or herself is not the one out knocking on doors and and serving grand jury subpoenas and doing the stakeouts. Those are career professionals who are doing that. So if, in the course of their investigations, they find evidence that somebody, even somebody close to the president like Michael Cohen, has committed crimes, they pursue it. Then at some point, it goes up the chain. And it’s a really hard thing, actually, to get away with crushing an investigation that’s done in good faith. 

So it’s independent by nature, because that’s how the place operates. And that’s not necessarily affected by who’s at the top. Everything I’ve seen about [current U.S. Attorney] Geoff Berman is that on cases it’s untoward for him to be running, like Michael Cohen, he recused himself. And in other cases, you pursue what the career people recommend pursuing. 

VTD: We’ve been following the impeachment inquiry more broadly, in part because Vermont’s lone congressman, Rep. Peter Welch, sits on the Intelligence Committee. I know from your podcast you’ve been watching what’s happening on Capitol Hill very closely. And so far there seem to be so many moments in this process that seem like turning points in the case against the president, but then nothing happens.

PB: Well, something’s happening now. I assume you’re speaking broadly that in two years of the Mueller investigation, it didn’t really lead to anything. Then in the space of days or weeks, it went from zero to 60 with holding the president accountable. That’s fascinating to me: that you had an entire volume two of the Mueller report that couldn’t move Nancy Pelosi off the needle, and then the Ukraine stuff, almost overnight it seems, was the straw that broke the camel’s back. 

VTD: What’s surprising about that?

PB: I actually don’t think it’s surprising if you think about it. I think it may look surprising to the public eye. 

I think it’s partly driven by the fact that we did have the Mueller investigation. We did have all this proof laid out of obstruction. The president seems to have gotten away with that, at least for the time being. And rather than learn a lesson from it, rather than pay attention to the loud criticism of involving a foreign power in our own elections, and happily and greedily taking advantage of favors like that, this president decided, ‘yeah, I’m just going to do it again.’ 

The timeline is fairly extraordinary. On July 24 of this year, Robert Mueller testifies. There’s a lot of hoopla leading up to that, you know, and the hearing wasn’t great. Talk of impeachment faded, I think, as that testimony closed on the evening of July 24. And then when does [Trump] call President Zelensky of Ukraine and put the arm on him to help investigate the Bidens? The next day. 

It was something about the brazen timeline of it, I think, that caused some people to change their minds. And then you have direct evidence that the president himself was involved. You have the president himself on a phone call, not telling other people. It’s very vivid, very understandable and very translatable to the public. The bottom line is, you should not be ordering foreign leaders to investigate your rivals, and everyone gets that. It, I think, resonates in the public consciousness as something that’s an abuse of power. And that’s why I think this thing has more legs. 

Then, you have a rash of revelations. The Mueller investigation was a standard operating procedure of, do everything secretly and quietly. Notwithstanding that a lot of things leaked through. But when they leak in the paper, it just does not have the same force as when it’s real, official events, right? 

Now, based on what Adam Schiff and the Intelligence Committee and other committees are doing, every other day there’s an actual event. Now, we have the actual opening statement from Alexander Vindman that says how inappropriate he thought the phone call was. We have Bill Taylor’s opening statement. We have the [whistleblower] complaint. We have a transcript, a readout out of the call. And these are happening every few days. So it stays in the new cycle in a way that does that it didn’t with the Mueller investigation. It’s easier to understand.

VTD: Based on what you just ran through, I’m curious where you fall on this question of how broad or narrow the scope of the impeachment inquiry should be. Do you think this should be laser-focused on the Ukraine call, or is there a broader set of allegations that should be explored here?

PB: I have to think about that. On the one hand, you want to have a streamlined indictment. You don’t want to overdo it. You want it to be simple and understandable for the jury. But on the other hand, you don’t want to leave stuff on the cutting room floor if it’s important and you feel there’s a duty to hold people accountable for it. 

I tend to think that because this is a political process, the general strategizing that real criminal prosecutors do maybe shouldn’t be the way that these politicians think about it. There’s an argument to be made, because it’s a political exercise, not to drag in the Mueller stuff. That was sort of adjudicated unfairly in the minds of a lot of people, but it’s done. 

This is new. This is fresh. This is easily understandable. Why muck it up with the Mueller stuff? So I think there’s a decent argument to just proceed for now on this stuff.

VTD: You’ve been well-known for being aggressive on corrupt politicians and white-collar crime. Just recently we heard our Sen. Bernie Sanders, on the 2020 campaign trail, talking about how he wants to appoint an attorney general who would focus on white-collar crime. Why does a candidate need to point this out? Why hasn’t our justice system been focused on this in the past?

PB: Well, I don’t think anybody brought more white-collar prosecutions — whether it’s fraud, or embezzlement, or Ponzi schemes, or insider trading or accounting fraud — than my office during the Obama administration. 

Some people have the view that there were more people who should have gone to prison because of the financial crisis. But lots and lots of people and lots and lots of different offices took a look. And in some cases, I think, people looked very hard. But you can’t make a case unless you have the evidence.

There was lots of bad conduct, lots of bad behavior. There’s lots of greed. There’s lots of ambition. There was lots of pulling the wool over people’s eyes with respect to representations made. But at the end of the day, I’m not aware of anyone, anywhere — career people — making the recommendation, based on the evidence they had and the laws that are in existence, that the head of a particular bank should have been hauled off in cuffs.

That’s not a satisfactory answer to a lot of people. But a lot of what happened with the financial crisis is, they had defenses. It might be irritating that they could rely on the advice of counsel or the advice of accountants or the sophistication of the parties who bought some of the junk that was being offloaded. But, yeah, it’s a point of soreness with respect to the financial crisis. I totally get that.

VTD: What can people expect from this lecture that you’re giving at UVM?

PB: That event is two weeks away, which is a lifetime in the world of law and politics. I presume we would spend some of that time talking about what is happening in that moment, how impeachment is proceeding. And I hope we’ll also talk about deeper and more evergreen issues like I talked about in my book: the nature of equal justice under law, what rule of law means, how we can have better democratic institutions, how law enforcement can remain independent. What the future will look like for criminal justice — and for justice generally — whether Trump gets reelected or not.

Read the story on VTDigger here: Q&A: Preet Bharara on the politics of impeachment.

Vermont State Police are investiating the “suspicious” death of a delivery truck driver from Boston, whose body was found with apparent gunshot wounds Friday evening in Rockingham.

An autopsy is set for Sunday on the body Roberto Fonseca-Rivera, 44, at the Vermont Chief Medical Examiner’s Office in Burlington to determine the cause and manner of his death.

Fonseca-Rivera was working for Katsiroubas Produce of Hyde Park, Massachusetts, and had been in Vermont making deliveries in a company vehicle, state police said in a press release.

His last known location was at about 12:15 p.m. Friday, leaving Rutland heading south on Route 103, according to police.

According to the statement from police, investigators believe the shooting took place between 1 p.m. and 1:30 p.m. Friday, near where Fonseca-Rivera’s body was located on Rockingham Road, also known as Vermont Route 103, between Lower Bartonsville and Williams roads in Rockingham.

Police responded to the scene around 5:45 p.m. Friday after a call for a welfare check on the driver of the box truck on Rockingham Road, according to police.

Troopers arriving at the scene found the truck pulled over to the side of the southbound lane of the road, with Fonseca-Rivera dead inside.

Police said the preliminary investigation indicates this was an isolated incident, and Katsiroubas Produce is cooperating with the investigation.

State police ask anyone who saw the Katsiroubas Produce truck on Route 103 on Friday afternoon, including anyone who may have seen anything suspicious with the truck or with any other vehicles operating near the truck, to contact the barracks in Westminster at (802) 722-4600.

Ted Katsiroubas, the CEO of Katsiroubas Produce, posted a statement on the company’s Facebook page Saturday evening. 

“We are deeply saddened to learn of the tragic death of our dedicated, kind and reliable co-worker, Roberto Fonseca-Rivera,” according to the statement. “We learned in the past few hours that Vermont State Police suspect foul play in Roberto’s death. We hope the investigation is quick and successful. We are assisting in any way we can. We want justice for Roberto.”

The company CEO added, “Roberto’s smiling, outgoing presence always brightened our days. This was a man who would stay after work and help coworkers, repairing their vehicles.”

Read the story on VTDigger here: Boston delivery driver found shot and killed in Vermont.

SOUTH BURLINGTON — Two years ago, Anako Lumumba reported to police that she was receiving death threats from her fiance, Leroy Headley. A few months later, she was found shot dead in her home.

She had been scheduled to appear at an earlier relief-from-abuse hearing, but when the time came — as with many other victims —  she did not show up.

After Lumumba’s death, her case quickly became the center of a statewide discussion about Vermont’s domestic violence laws, and how they could better serve victims of violence at home.

Last week, members of her family sat alongside dozens of other community members at Tuttle Middle School to talk about reform ideas that still haven’t been addressed since her death.

“No victim should be going to that courthouse by themselves to sit in front of a judge for a restraining order hearing on their own,” argued Gretchen Gundrum, who said she has been a victim of domestic violence. “Even if you can’t afford it, you should have legal representation.”

That assertion has been the subject of much debate over the past year. Attorney General TJ Donovan spoke out last year in support of getting more representation for victims in family court last year in the wake of Lumumba’s death. 

Because domestic violence cases tend to be dealt with in civil court, victims do not have the constitutional right to a lawyer during the proceedings. Advocates believe that’s one reason many simply do not show up — often afraid of the consequences if they do. Though the state has four designated victim advocates, they are spread out over thousands of cases, with the need for their services often exceeding their manpower.

But getting that representation for cases of domestic violence has turned out to be a much more complicated conversation than he anticipated, said Donovan, who was not at the meeting but interviewed later by phone.

“That is kind of an ongoing conversation about whether that’s something that should happen or not,” he said.

Donovan said his office is finding that cases of domestic violence are incredibly complex, with a range of power dynamics and factors — like children and housing — that can’t be separated from the issue at hand. He said there’s also a separate issue of getting the resources necessary to find and train people to represent victims in court.

“We’re hearing from experts that it may not be the best thing right off the bat,” Donovan said. “We need to listen to them and make sure we’re going about it at a deliberate pace.”

However, Donovan said, when it comes to the issue of seizing guns in cases when relief from abuse orders are issued, that’s a reform he plans to push again this session.

“That is a critical time for safety for these women, and time is of the essence,” Donovan said. “Public safety here comes first.”

Gundrum said another reform she’d like to see is changing the language of the state’s domestic abuse laws to be more inclusive of abuse that goes beyond just physical harm to include emotional and psychological harm.

“Vermont uses the words ‘eminent fear,’” Gundrum said. “I have a question: What does that mean? Because we do show up asking for help out of fear. And when we’re denied help by our system at the court level, this is not acceptable.”

Chittenden County State’s Attorney Sarah George told the gathering that while she agrees that there are statutes that need to be changed, the reality is that there’s a lot that can be done on the ground to help provide support for victims of domestic violence.

“The offender’s constitutional rights are always going to take precedence over the survivor’s. I just don’t know how that’s ever going to change, given the way that our Constitution is,” George said. “I really believe that what can make a big difference isn’t focusing on whether we can get convictions.”

Instead, George said, focusing on getting people out of their relationships, and getting them the resources they need to get to a healthy place where they don’t have to go back to their abuser, can make all the difference.

“And also obviously helping the offender deal with whatever trauma or whatever has led them to be abusive and hope that they don’t do it again,” George said.

Because when it comes down to it, she said, if a case gets to the point where her office is seeing it, it’s much too late.

“I have four or five women in my mind every single night that I wonder if they’re going to be killed,” George said. “And I just cannot do anything about it and it drives me crazy. So I think helping them at a basic, basic level is where we should be focusing our resources.”

Advocates at the South Burlington forum pointed to Steps to End Domestic Violence and HOPE Works as two organizations that are instrumental to helping Vermont’s victims of domestic violence.

Many in the room, however, were still focused on the need for more systemic change.

“What I want to emphasize is the change that our system needs to make,” Gundrum said. “And we have to start by reaching out to our Statehouse representatives.”

Sen. Dick Sears, D-Bennington, chair of the Joint Legislative Justice Oversight Committee, later said in an interview he thinks there are a lot of different groups that could use more legal representation in Vermont.

“Certainly trying to provide representation for these victims is important,” Sears said. “But we do have a problem in Vermont with the number of lawyers that are available. But I’m happy to discuss it with the attorney general and anyone else about what the appropriate process is.”

Read the story on VTDigger here: Victim advocates seek systemic change.

The death of a Boston produce delivery driver who police say was found fatally shot in the head and neck in his company’s box truck on the side of the road in Rockingham has been ruled a homicide, Vermont State Police said Monday afternoon.

Police say no arrests have been made in the shooting death of 44-year-old Roberto Fonseca-Rivera and the investigation remains ongoing.

A caller had reported the vehicle parked along the side of Route 103 late Friday, where police found Fonseca-Rivera deceased inside. The windshield also appeared to have bullet damage. 

His death comes almost exactly a year after Fonseca-Rivera had been sentenced to prison for his role in a large-scale cocaine trafficking ring that involved shipments of kilos of the drug through the U.S. Postal Service from Puerto Rico to Massachusetts.

According to court records, Fonseca-Rivera was sentenced in federal court in Boston on Nov. 5, 2018, to a year and a day in prison. He had earlier pleaded guilty to conspiring to possess with intent to distribute cocaine  

Of the five Massachusetts people convicted in that case, Fonseca-Rivera received the least amount of prison time, with one member of the operation receiving the longest sentence, 17½ years behind bars, according to court filings.

Vermont State Police, who are investigating Fonseca-Rivera’s homicide, have confirmed he is the same person who was sentenced last year on the federal drug charge.  

Fonseca-Rivera, as part of his sentence in that case, was also ordered to serve three years of supervised release following his prison term. It is not clear when Fonseca-Rivera was released from prison.

Court records filed in that case show that Fonseca-Rivera admitted to his role in the operation as well as the roles of others. Several records in his case had also been filed under seal. 

Police have not said if that drug case is tied to the homicide probe.

More than 30 packages of cocaine were shipped in the mail from Puerto Rico to several locations in Massachusetts from January 2015 to July 2016 and retrieved by those involved in the drug operation, according to court records. 

According to a statement to investigators filed in the case, Fonseca-Rivera told them that he had retrieved about eight of the packages at two different locations in Massachusetts, receiving payments of $500 for each one.

Carlos Reyes of Framingham, Massachusetts, is the drug ring member who received the longest prison sentence of 17½ years, according to a press release issued at the time from U.S. Attorney for Massachusetts Andrew Lelling.

Reyes was arrested after drugs were found hidden inside a toy oven stuffed in the trunk of his vehicle during a traffic stop, the release stated.

Police had said Friday that Fonseca-Rivera’s death was “suspicious.” Following an autopsy Sunday on his body the Vermont Chief Medical Examiner’s Office determined the manner of his death a homicide.  

The cause of death, according to a statement issued Monday afternoon by state police, is gunshot wound to Fonseca-Rivera’s head and neck.

Maj. Dan Trudeau, head of the Vermont State Police criminal division, said via text he was in meetings all day Monday and was not available to comment. 

Windham County State’s Attorney Tracy Kelly Shriver declined comment Monday and referred questions about the ongoing probe to state police.  

U.S. Attorney for Vermont Christina Nolan, the state’s top federal prosecutor, declined comment through a spokesperson Monday on whether her office is involved in the investigation.

Fonseca-Rivera, according to police, was working Friday for Katsiroubas Produce of Boston, Massachusetts, and had been in Vermont making deliveries in a company box truck.

Police said his last known location was at about 12:15 p.m. Friday, leaving Rutland heading south on Route 103. Investigators said they believe the shooting took place sometime between 1 and 1:30 p.m. Friday near where his vehicle was located in Rockingham.

Police said Fonseca-Rivera made a stop at the 99 Restaurant in Rutland Town before heading south on Route 103. 

The vehicle was found, with Fonseca-Rivera deceased inside, late Friday afternoon on Rockingham Road, also known as Vermont Route 103, between Lower Bartonsville and Williams roads in Rockingham.

State police are asking anyone who saw the delivery truck or has any information about the case to call the Westminster barracks at (802) 722-4600. 

Also, investigators ask any businesses, residences or vehicles that may have video showing Route 103 from Rutland at about 12:15 p.m. Friday to Interstate 91 in Rockingham at about 2 p.m. Friday to also call the Westminster barracks.

Ted Katsiroubas, owner of Katsiroubas Produce, could not be reached Monday for comment. WBZ-TV in Boston reported that Katsiroubas described Fonseca-Rivera as a “dedicated” worker, and that was a big reason for hiring him back when he was released after serving his sentence in the cocaine case

“The way that we looked at it,” Katsiroubas told WBZ-TV, “was that he had served his time and he left a very positive impression on us before the incident and we felt that in the spirit of the way that we felt that he was, that we were comfortable with bringing him back and we welcomed him back.”

Read the story on VTDigger here: Shooting death of Boston produce delivery driver ruled a homicide.

The grandparents of two children are suing the state’s Department for Children and Families for ignoring what they say are dozens of reports of the children’s abuse and for failing to step in and protect them.

The suit alleges that the department ignored more than 30 reports from multiple people about the children’s abuse, failed to make 26 required visits and carelessly performed its required risk assessments. It argues all of this drastically increased the children’s risk of harm.

Beginning in 2008, the children in question began living with their father and stepmother in a three-bedroom mobile home in Ludlow, according to court documents. They were approximately 8 and 10 years old at that time. The suit alleges that they endured “almost daily physical and emotional abuse” for the next four years, until they were taken into custody by the state in 2012.

“This is not a case where one lone action determined the children’s fate,” the suit states. “This is a case of grossly negligent and repeated failures to follow DCF policies, rules and statutes enacted to protect vulnerable children.”

It argues that DCF is liable for all of the “injurious consequences” that stemmed from its negligent acts, even though there were acts by others that also injured the children.

The grandparents who filed the suit are not being named by VTDigger in order to safeguard the identities of the children they say were harmed.

The suit was originally filed in Windsor County Superior Court in 2014, and has been pending for more than five years. Now, a jury trial in the case has been scheduled for December.

However, the case was filed by the children’s grandparents, who have suffered serious health problems in the intermittent time period. Their grandfather died in 2018, and their grandmother is currently suffering from advanced lung cancer.

The state has filed three different appeals, on various procedural grounds, all of which have been denied by the court. A decision from the Vermont Supreme Court as to whether the state has permission to file a motion for interlocutory appeal is currently pending.

The children were allegedly essentially locked in their rooms, and would be hit, beaten and threatened with violence on a regular basis. 

“Despite all of this, DCF basically failed to take any action,” said Sharon Gentry, the lawyer representing the family in the case. “At one point even the grandparents were coming to DCF to make reports, and they told the grandmother to go home.”

A spokeperson for DCF said the agency does not comment on specific cases but provided what she described as a general statement. “The hardworking social workers of DCF do their best every day to help protect Vermont’s children. DCF strives to provide these workers with the resources and tools to accomplish that important goal.”

Concurrent with the alleged abuse of the children, the lawsuit alleges, the children’s father and stepmother were also acting as quasi-landlords for vulnerable adults in their three-room home, exploiting the adults for financial gain.

Court documents allege that the couple would lure the vulnerable adults into residing in their home, and then take their money, and physically and emotionally abuse them.

The adults were allegedly not allowed to leave the house, and if they did, the parents would force one of the children to tackle them and bring them back. If the vulnerable adults did not comply with the couple’s demands, the couple would threaten them with a hammer.

There were several suicide attempts at that house that required police intervention, according to court documents.

Several of the vulnerable adults who lived at the home testified about the kind of conditions that both they and the children endured.

One woman testified that in the mornings, if either of the parents were awakened, even by one of their many dogs, then the children would inevitably be beaten and thrown out the door, according to court documents. She said the couple’s favorite things to do were to smack the son on the back of the head and throw objects at the daughter.

Another adult testified that the parents would regularly slap the children in the face, and hit them with backscratchers, belts and shoes. They said the stepmother would also threaten the children with violence, saying things like “I’ll knock you out” or that she would “beat the (stuff)” out of them. 

The case alleges that the children’s father would masturbate to pornography on the computer in front of the children, and that their stepmother put pictures of the 10-year-old girl online in an attempt to entice men to have sex with her. 

The son was also called names such as “bitch, bastard, retard, dummy and idiot” daily, and hit “four to five to 10 times a day,” the suit alleges.

The children were also put into living conditions alongside many adults with criminal records, including several with charges of inappropriate contact with minors. One of the adults who lived in the family’s home had 169 previous contacts with police, and two investigations into allegations of aggravated sexual assault on minors.

The children’s father himself had 17 contacts with Ludlow Police, while their stepmother had 46 contacts.

In 2012, a recently hired DCF worker was assigned to the family’s case, and quickly informed her supervisor that the children should be removed from the home, according to court documents. Her boss allegedly told her that she was new to the job and that she should just be following the plan that DCF already had in place. That plan was “just to offer support,” according to court documents.

The DCF worker, frustrated with that answer, went over her boss’ head, informing police of the case. The officer she worked with ultimately drafted an affidavit to remove the children from the home.

At that time, the officer allegedly apologized to the grandparents for DCF’s failure to protect the children and said she didn’t understand why the children had not been removed from the home sooner.

When they were removed from the three-bedroom mobile home, there were nine people and 10 dogs living in the home, court documents say.

Both parents were criminally charged for their abuse of the children, and have served time in jail. Gentry, who filed the lawsuit, said that’s one thing that has been hard for the clients — watching the state charge the parents with multiple counts of domestic assault, while at the same time, spending $100,000 on experts who will say that the children didn’t experience abuse.

“I think it’s been really hard for the kids to have to hear that coming from the state,” she said. “To hear ‘nothing really happened to you.’”

Gentry said that’s really what the family wants to get out of this suit — acknowledgement of what happened to the children, and acknowledgement of how DCF failed them.

“For years, the kids’ family, and even people living in their house were saying these kids are being abused,” Gentry said. “They want someone to say that what DCF did was wrong. The kids themselves even want to go through this process, even though it’s so hard — they want to make sure it doesn’t happen to any other kids. They’re very clear on that.”

Read the story on VTDigger here: Suit claims DCF failed to protect children from years of abuse.

The Vermont Department of Corrections, despite an order from a judge, isn’t revealing much about the documents it’s withholding from VTDigger related to the removal of a prison superintendent who had been the subject of sexual harassment complaints.

The information that was provided does, however, confirm records exist, which the corrections department has previously refused to do in response to public records requests and a later lawsuit regarding the dismissal of Edward Adams as superintendent of the Springfield prison.

VTDigger in its pending lawsuit is seeking records related to Adams’ removal as superintendent of the Southern State Correctional Facility in January, and his placement on administrative leave several months earlier. Adams is now a probation officer. 

A sexual harassment complaint had previously been brought against Adams and the DOC by a female correctional officer.

That complaint was filed when he served as the superintendent of the Chittenden Regional Correctional Facility, between June 2014 and January 2016, the Burlington Free Press reported last year.

VTDigger, as part of its pending case, is now calling on Judge Timothy Tomasi to “compel” the corrections department to provide a more complete index of withheld records than the one submitted that referred to document types simply as “document,” “email,” and “correspondence.”

And, in spaces set aside for descriptions of those records, which is a requirement of the index ordered by the judge, little else is revealed.

For example, one stated, “12-19-18 agreement,” another stated, “9-4-18 emails between DOC employees and DOC supervisor,” and another stated,”9-21-18 report.”

Next to each entry are the exemptions to the Vermont Public Records Act cited by the corrections department keeping the documents from being released.

Without knowing more about what types of documents are being withheld, the news organization can’t determine, or make arguments, over whether the exemptions cited to the Vermont Public Records Act apply, according to a filing by VTDigger.

“The thrust of Plaintiff’s motion to compel is that neither the Court nor Plaintiff can evaluate the merits based on the  factual information provided thus far by Defendants,” wrote Stephen Coteus a lawyer representing the Vermont Journalism Trust, the parent organization of VTDigger.

Coteus, an attorney at the law firm Tarrant, Gillies & Richardson of Montpelier, is asking the judge to order the state DOC to provide “a sufficiently detailed Vaughn index.” 

A Vaughn index provides a general description of each record withheld as well as what exemption applies for keeping it from being released under the public records act.

Judge Mary Miles Teachout, who had been presiding in the case in Washington County Superior civil court before a statewide rotation of judges, did order this summer that the state DOC provide a Vaughn index.

Teachout, in a ruling from the bench following a hearing, said that such an index should have been provided to VTDigger from the corrections department months earlier under the Vermont Public Records Act.

At that hearing, the corrections department argued that it didn’t need to provide such an index, or even information related to whether documents about Adams exist.

The Vermont Attorney General’s Office is representing the corrections department in the lawsuit.

“We complied with the Court’s order and provided the Vaughn Index,” Charity Clark, the attorney general’s chief of staff, responded Tuesday in an email.

“The additional information requested by VTDigger is from a personnel file and is exempt from the requirements of the Vermont Public Records Act under more than one section,” Clark added. “We await the Court’s decision.”

Coteus said exactly what details a Vaughn index must include is not set in stone.

“The tricky part is that a Vaughn index may differ in form and content depending on the case, but it has to meet its purpose,” the attorney said.

“The purpose of the Vaughn index,” Coteus added, “is to provide the other side, who has not seen the records at all, with enough information so they can actually make arguments about whether an exemption applies or not.”

He said that the index provided in this case doesn’t specify the author and recipient, or specify the nature or subject matter of the document. “And that’s pretty standard protocol in a Vaughn index,” Coteus said.

The index provided to the court listed 20 different document types, totalling 47 pages.

A frequent exemption cited in the index to the Vermont Public Records Act deals with “documents relating to an individual, including information in any files maintained to hire, evaluate, promote, or discipline any employee” of a public agency.

Assistant Attorney General Jared Bianchi, who is representing the corrections department, has submitted a filing arguing that the index that has been filed is good enough.

“Plaintiff, having received a Vaughn index now seeks even further disclosure,” Bianchi wrote. “Plaintiff attempt to execute the statutorily enshrined privacy rights of state employees through a ‘death by one thousand cuts’ approach should be rejected.”

Instead, Bianchi wrote, after rejecting VTDigger’s motion to compel, the judge should allow the case to proceed to a summary judgment phase.

“The Court should have full insight into the facts and legal issues before requiring irreversible disclosure of confidential information,” Bianchi wrote. “Summary judgment process will allow the Department to explain its rationale publicly, and to attach appropriate affidavits and exhibits.”

He added, “Plaintiff will then have the opportunity to attack the Department’s submission as insufficient or legally flawed, or to frame some argument for greater disclosure before responding.”

Coteus, representing VTDigger, replied in a filing that if the corrections department can supply additional information later, they can provide it as part of the index.

“Defendants provide no reason why they can publicly produce additional factual information and explanation upon the filing of their summary judgment motion but should be protected from producing that same information now,” Coteus wrote. “There is none.” 

The news organization argued in its lawsuit filed in January that the documents related to Adams’ dismissal are in the public interest and should be released.

“The records requested by VTDigger,” the lawsuit stated, “are relevant to the public’s significant interest in learning about the operations of a State-owned correctional facility, being able to scrutinize the work-related conduct of public employees and any investigation of such conduct.”

It’s unclear if Judge Tomasi will hold a hearing on the index dispute, or issue a ruling based on the filings.

Read the story on VTDigger here: Corrections department rebuffs VTDigger again in public records dispute.

LYNDONVILLE — The nightmare unfurled over months for Sarah and Benjamin McIntosh.

The mother and son ran the Inn at Darling Manor, a short-term rental in Lyndonville. Earlier this year, they agreed to rent the converted carriage house to Gary Megrath, a local contractor, from March 25 to April 26.

But as the McIntoshes tell it, the arrangement soon spiraled into the bizarre.

They said Megrath brought four dogs, 20 chickens and two chinchillas into the property. They said he dismantled the building’s propane heating system and rigged it with gas tanks that are used for grills. And then, they said, he told the two that he and his family wouldn’t be leaving after all.

The McIntoshes filed eviction paperwork. Megrath didn’t leave — and began stalking, harassing and intimidating the family, they said. 

In September, a court finally ordered Megrath to vacate the rental, and a judge upheld a restraining order filed by Benjamin McIntosh against him. For too long, though, the McIntoshes felt officials let Megrath squat in their building by abusing tenant laws.

“He uses the court system like a criminal uses a gun,” said Sarah McIntosh, 59.

Megrath did not respond to six phone calls between the end of October and early November seeking comment. His voicemail box was full and could not accept new messages on the first five calls. A message was left for “Gary” on the sixth call last week. Speaking in May to the Caledonian Record, he denied harassing the McIntoshes, and in court records he said he never damaged any of their property.

But the clash in Lyndonville is one in a long string of similar stories across Vermont, in which landlords described Megrath overstaying leases and then stalling his exit through legal maneuvers.

‘Half naked, barking at us’

Megrath moved into the inn March 25 with his wife and daughter, paying $800. 

“Things got weird right away,” Sarah McIntosh said.

First came the animals: two more dogs than the McIntoshes said were allowed, and 20 chickens in the garage. 

Then Megrath told the property owners he didn’t have hot water in the unit. 

The owners said they found the propane heating tanks empty, when they had filled them beforehand. The McIntoshes claimed Megrath was responsible for any extra fuel; Megrath said the opposite.

A few days later, the McIntoshes said Megrath dismantled the propane system and rigged it with grill tanks — a fire hazard.

On April 25, after Megrath said he wouldn’t be leaving, the McIntoshes moved to evict him, but he wasn’t served with paperwork until a day later. For Megrath, the timing was perfect: State law says that after 30 days,  guests in a lodging facility are covered by landlord-tenant law, entitling them to more rights and protections.

Megrath filed a complaint with the Lyndon town health officer about the lack of hot water. The officer inspected the rental and, along with the heat issue, found no smoke and carbon-monoxide detectors. The McIntoshes believe Megrath had removed them.

“Uninhabitable, is what he called it,” Sarah McIntosh said. “Uninhabitable — yeah, it sure was when he got done with it.”

The city issued Benjamin McIntosh an emergency health order. The dispute played out before the Selectboard, as the Caledonian Record reported.

But behind the scenes, and over the next several months, Megrath began harassing the family, the McIntoshes said.

He would sit in their driveway, staring, and revving a motorcycle. He cut their garden hoses in half, started fires and held noisy gatherings, they said. 

The McIntoshes believe Megrath killed the beehive colonies in their yard, which had been the passion project of a disabled family member.

“It was such a joy for him,” Sarah McIntosh said. “Ten years and I couldn’t find anything — his passion — and then it’s gone.” 

One August day, Megrath stood in the yard and started swearing, Benjamin McIntosh later wrote in a court document.

“He was half naked, barking at us,” the son said.

A few days later, Ben McIntosh said in a restraining order request, Megrath showed up at Sarah McIntosh’s workplace to try to get her fired.

A trail of lawsuits through Vermont

For years, landlords in several counties accused Megrath of skimping on rent and staying in residences after being evicted, according to court records.

Megrath was evicted from a Barton apartment at the beginning of November 2018. But his landlord soon sued, claiming Megrath had refused to leave. 

A judge ruled against Megrath in that case in January, and the parties later came to a settlement in which Megrath agreed to pay outstanding bills of more than $1,000.

In October 2017, a different set of landlords went to court to evict Megrath from a rental in Brownington. The landlords claimed that Megrath failed to pay $2,000 in rent and wouldn’t vacate, even though they had given him an eviction notice.

In that case, Megrath argued that he and his wife didn’t feel obligated to pay because the landlords hadn’t upheld their end of the agreement. He wrote in a letter that the monthly rent was supposed to go toward purchasing the property. And, he wrote, the landlords had reneged on a deal to buy the property. 

The case continued until February 2018, when the landlords dropped the dispute because the Megrath family left.

In 2015, another landlord sought to evict Megrath from a rental home in Montpelier and force him to pay rent, records show.

Megrath owed $5,150 and had been occupying the residence despite an eviction notice, the landlord claimed in June 2015 court records.

“I disagree that any rent is owed,” Megrath wrote in response a month later. He also disagreed with the claim that he was occupying the residence against the law.

The case stretched into that fall, when a judge ruled in favor of the landlord and ordered Megrath to pay the rent and leave.

In November 2011, another Washington County landlord asked a judge to evict Megrath and order him to pay rent. The parties went to trial in November 2012. The judge sided with the landlord. 

The Megraths had to pay $2,950 and were ordered to leave.

Megrath counters in court

The McIntoshes’ eviction and rent case is still active, court records show, even though Megrath has moved out. 

In August, Megrath was ordered to pay about $1,950 in rent to the court while the case remained pending. As of early September, the McIntoshes said Megrath owed them about $4,000. 

Megrath wrote in court records that he never signed an agreement with the McIntoshes for his stay at the inn, and that the innkeepers had broken several verbal agreements. 

He wrote that the McIntoshes didn’t clean the unit before his family moved in, that there were no working smoke detectors inside and that Benjamin McIntosh hadn’t filled the propane tanks properly.

And he disputed the idea that his stay would be a short one.

“First months rent check was written out to Ben Mcintosh and in the check memo it clearly states first months rent,” Megrath wrote in a July 29 document. “If they were renting it to us as an inn not long term monthly rental we would have had to sign and pay for room and meals tax … ”

According to Sarah McIntosh, Judge Robert Bent said during the court dispute that if she could establish a pattern to Megrath’s behavior, Megrath would be in serious trouble.

Sarah McIntosh dug into court records and found the other cases. But when she brought the paperwork to Bent and other officials, she said no one listened.

“You are not viewed by these systems as a valuable member of this community — at all,” she said. “And I don’t know how many other people are going through this.”

Bent, reached by phone, said he could not comment on the case or McIntosh’s account.

After five years of hosting guests, the family plans to shutter the inn.

“We talked about it a little bit,” said Sarah McIntosh, “but I don’t have the confidence anymore.”

Read the story on VTDigger here: When inn tried to evict a tenant, he launched a harassment campaign.

This article by Anna Merriman was published by the Valley News on Nov. 5.

WHITE RIVER JUNCTION — A former prison guard at the Southern State Correctional Facility pleaded guilty to one charge and no contest to another in a sex crimes case involving an inmate at the facility.

Cameron Morin, 22, of Newfane, appeared in court Tuesday for the plea. He will be sentenced following a pretrial investigation and a psychosexual examination, according to Windsor County Deputy State’s Attorney Heidi Remick. She added that the sentencing likely won’t occur for several months, although there is no date set yet.

Morin was charged in January with lewd and lascivious conduct and sexual exploitation following a five-week investigation into possible sexual crimes at the facility.

In court, Remick said the charges stem from two incidents late last year that involved sexual contact and oral sex between Morin and the inmate. Investigators started looking into the allegations after a male inmate called the Department of Corrections Investigation hotline, according to a news release from Vermont State Police. Morin also was issued a civil violation ticket for introducing tobacco into the facility, according to the release.

Morin pleaded guilty to the lewd and lascivious charge Tuesday and no contest to the sexual exploitation charge. The latter charge includes a penetrative sex definition, which Morin has denied, according to Remick.

An official with the Department of Corrections did not respond to calls for comment on the case.

A VtDigger story from March said that the department placed Morin on leave following the arrest in January and that he resigned in February.

The all-male facility is located in Springfield and can hold up to 370 inmates and 146 state employee positions, according to the DOC website.

Read the story on VTDigger here: Former corrections officer pleads guilty in sex crimes case.

BARRE — Jury selection has begun in a first-degree murder trial for the fatal shooting of former Vermont Frost Heaves basketball player Markus Austin outside his Montpelier home in the winter of 2017. 

Jayveon Caballero, 31, is facing a possible life sentence for the crime. He has been held without bail at the Southern State Correctional Facility in Springfield after pleading not guilty to the murder charge in May 2017.

On Wednesday, dozens of potential jurors gathered in Barre, as lawyers on both sides worked to narrow the list down to a final selection. That process is expected to end Thursday morning, with opening arguments set for that afternoon.

Most of the potential jurors were from Montpelier, and many had lived or worked near Barre Street, where the alleged murder took place. Almost everyone said they had heard or read about the case, several noting that it was hard not to, given that it was the city’s first murder in a century.

Austin had worked as a mental health specialist at the Vermont Psychiatric Care Hospital for two years leading up to the shooting. He was the first player signed by the semi-pro Vermont Frost Heaves, which ceased operations in 2011. 

The shooting happened early in the morning on Jan. 22, a Sunday, in a parking lot at 191 Barre St., where Austin, 33 at the time, lived with his girlfriend and young child. 

Investigators reported that the night of the shooting, Caballero had texted Austin, inviting him to a bar in Barre called Gusto’s, court documents show. Later that night, the pair got into a fight at the bar. Austin reportedly punched Caballero’s girlfriend, Desiree Carey, fracturing her jaw.

Caballero accompanied Carey to the hospital for treatment. Witnesses reported that there, he appeared agitated. Austin, meanwhile, reportedly went to a friend’s house for several hours before returning home.

Around 4:30 a.m., witnesses reported hearing shouting, and ultimately, a gunshot. 

Police alleged that soon afterwards, Caballero fled the state by bus. Four months later, he was found in Deltona, Florida, and extradited back to Vermont.

Originally, Caballero faced a second-degree murder charge, but after further evidence was gathered, that was upped to first-degree murder. He has been held without bail since the extradition.

About a month ago, the state introduced “thousands of pages of documents and dozens of hours of electronic recordings” into the case file. Caballero’s attorney, Daniel Sedon, argued the new evidence was introduced too late to properly prepare for the trial, and asked the court to either delay the trial or exclude the documents and recordings. 

The court ruled partially in the defense’s favor. Judge Mary Morrissey ruled that the transcripts of witness interviews and other documents would be allowed, while the jail call recordings would not. After that decision, the defense agreed to move forward with the trial.

Also in October, the state moved to introduce previous instances of Caballero’s “falsity and dishonesty” as evidence to impeach his credibility, citing two previous examples where he had been investigated for crimes and initially denied involvement before later pleading guilty. 

The court, however, ruled that the danger of unfair prejudice in this instance was too high, especially since the crimes in question happened a decade or more prior.

“Emphasis on defendant’s historical police contacts is likely to substantially prejudice the jury, a danger that far outweighs any arguable probative value to the proffered evidence,” Morrissey wrote in her decision.

Morrissey oversaw the selection process Wednesday, and will be presiding over the remainder of the trial, which is expected to last about two weeks. 

A tentative end date has been set for Nov. 19.

Read the story on VTDigger here: Trial begins for 2017 murder that was Montpelier’s first in 100 years.

New York City police took to social media Sunday to tout its seizure of 106 pounds of marijuana, showing two officers proudly holding bags of the dark green buds surrounding by tables covered with the product. 

It turns out the shipment came from Fox Holler Farms in New Haven, Vermont, one of dozens of hemp operations that have popped up around the state since the crop was legalized for industrial production. The hemp was headed to Green Angel, a CBD store in Brooklyn. 

Now, NYPD is investigating whether its bust was a mix-up. 

“It is currently at the lab at this point to make a final determination, was it hemp?” Chief Terence Monahan, an administrator for the NYPD, said at a press conference Wednesday. “The individual had no bill of lading justifying its delivery, so this is all part of an ongoing investigation.” 

Monahan said police intercepted suspected drug packages, field tested the contents for marijuana and then arrested the person it was intended to be delivered to, Ronen Levy, the brother of the owner of Green Angel. 

Levy said he tried to explain the situation to police, in an interview with ABC7 in New York. 

“They read me my Miranda rights, they proceeded to take everything out of my pockets, and cuffed me,” he said. “The officers ignored me, they didn’t want to hear anything. Everything that came out of their mouth was ‘It’s narcotics, it’s narcotics, we tested it and its narcotics.’”

Back in Vermont, Jahala Dudley, the owner of Fox Holler Farms, said she received a message Saturday that her shipment had been seized. Dudley contacted NYPD’s 75th Precinct in an effort to provide them with any further information they may need to verify the contents.

Later that day, she received another message from John Dee, who runs Green Angel, saying he just had his appendix removed and was unable to pick up the packages. Instead, his brother, Levy, went to pick up the hemp, where he was promptly arrested. 

“So, my mind’s blown,” Dudley said. “It’s Saturday, my buyer’s brother — who has nothing to do with this industry — is arrested and I feel like I have no control.”

Levy was released without bail Sunday and is now facing a trafficking charge with a court date for Nov. 19, according to Dudley. ABC7 said the brothers are considering legal action against the police and FedEx. 

“Meanwhile, our 106 pounds of hemp is sitting with the DA’s office downtown in New York City,” Dudley said.

Dudley said she brought nine boxes to the FedEx location in Williston on Friday to be shipped. Whenever she ships her hemp, Dudley said she includes in each box THC test results proving the hemp is not marijuana. She even had the Williston police confirm the contents’ legality.

“I guess one of the rumors going around, and I don’t know if it’s true or not, is that the NYPD are saying there was no paperwork in the boxes,” she said, relieved that the Williston police had a report on the packages.

Dudley provided VTDigger with a copy of that report, which states a FedEx employee called the Williston police thinking someone was trying to ship marijuana. The report says an employee opened two boxes, found the paperwork and determined “the police was not going to seize it.”

“Both boxes contained paperwork explaining the shipper as a registered VT Cannabis Hemp grower and had Oct 2019 laboratory paperwork stating the THC content of 0.06%,” the report reads. 

On Monday, a friend texted Dudley a screenshot of the officers touting their success on Facebook and Twitter, where two NYPD officers showed off what appears to be close to 100 large bags of marijuana. 

The department’s Facebook post has gathered over 2,000 comments as of Wednesday afternoon, most of which are critical of the confiscation, with some calling the seizure an act of theft.

To remedy the situation, Dudley said she’s been in contact with Vermont Sen. Patrick Leahy’s office, the state’s Agency of Agriculture and the Williston police department. She said her interactions with Vermont authorities on her hemp production have been “incredible.” She’s working with lawyers from Vermont Cannabis Solutions to clear up the situation. 

The sale price of this shipment was $17,500. Green Angel has already paid Dudley, but now the product is waiting for NYPD testing before its released.

Going forward, Dudley said she will be switching to using the U.S. Postal Service, who she said has better protections to get a package back should it be seized. She’s hesitant to start driving the crop herself, fearing she may be the next one to end up behind bars.

“I’m running a totally legitimate business,” Dudley said. “Now, I’m getting paranoid that if I deliver my legal product my buyer, that something bad could happen to me because the authorities are not educated.”

Read the story on VTDigger here: Vermont organic hemp shipment leads to arrest of recipient in New York City.

Last month, a packet of paperwork arrived at the town office in Kirby. The U.S. District Court for the Northern District of Ohio needed to know: Did this Northeast Kingdom town of less than 500 people want to join a historic multi-district lawsuit against the companies accused of fueling the opioid crisis?

“We really didn’t have much of a chance to look it over,” Wanda Grant, Kirby’s town clerk, said last week. The packet included a form: If town officials signed it, they would opt out of the suit. If they did nothing, the town would become part of a negotiating class that stands to include tens of thousands of municipalities around the country. The town’s three-member selectboard would discuss the proposal at its next meeting. 

Similar paperwork has landed at local governments around Vermont and the nation. Over the next two weeks, each of those municipalities will decide whether to join the broad-ranging lawsuit against several opioid manufacturers, distributors, and pharmacy chains.

Vermont Attorney General TJ Donovan is now recommending that Vermont towns and cities join the suit. In a letter to local leaders, first reported by VPR on Tuesday, Donovan says joining the litigation may be the simplest path for municipalities to get reimbursed for their efforts fighting the crisis.

“I think it’s important that the cities and towns that have been on the forefront of this crisis have a role to play if there’s a potential recovery, and to get some money back to the Vermont cities and towns,” Donovan said Wednesday.

The attorney general’s office has separately brought lawsuits against OxyContin manufacturer Purdue Pharma, members of the billionaire Sackler family who own Purdue, and two major opioid distributors. Donovan had previously opposed opening the national suit to a broad list of municipalities, signing onto a letter stating that the maneuver could interfere with the state’s settlement negotiations. But Donovan said that the court has now established a framework that resolves those concerns.

U.S. District Court Judge Dan Polster, who is based in Ohio, is overseeing the consolidated lawsuits of about 2,500 plaintiffs nationwide, broadly called the National Prescription Opiates Litigation.

Bennington and St. Albans are already named as plaintiffs in the national suit. Both towns previously retained private law firms to file separate, individual suits that brought them into the multi-district litigation, or MDL. 

But Polster has ruled that a new class of plaintiffs are now eligible to join: Nearly every municipality in the country — about 34,000 local governments — will be automatically included in a potential settlement unless they opt out of the suit. Stanford Law professor Deborah Hensler wrote in a blog post that this is “a newfangled form of class action” — there is no precedent for a settlement class of this scope.

Donovan was one of 38 attorneys general who signed a July 23 letter opposing the move. The authors wrote that by giving local governments the power to negotiate a settlement that could affect parallel legal actions by states, the new structure would be an unconstitutional infringement of state sovereignty. 

Donovan said Wednesday that this concern stemmed from the likelihood that all legal claims against the opioid companies — including his office’s cases, which are separate from the MDL — would eventually become part of a “global settlement” paid by the opioid companies.

The letter’s authors also said expanding the national suit would create procedural challenges that could delay a settlement. “Plaintiffs continue to propose an unprecedented process that, among other problems, would make ‘global peace’ more, not less, difficult to achieve,” they wrote.

But on Sept. 11, Polster ruled that the opt-out system, called a “negotiation class,” would proceed. Under the new structure, municipalities will be included in the suit unless they submit paperwork by Nov. 22 to opt out. The court has already determined, using data about the impacts of the opioid crisis, how a potential settlement would be allocated among the local governments included.

A settlement proposal would be subject to a vote by a panel of representatives. If 75% of the representatives vote in favor of a settlement, the plaintiffs will be locked in to those terms. No representatives from Vermont municipalities are included on the panel.

The federal court has left Vermont cities and towns with a decision to make: sign on to pursue a broad settlement that’s still short on details, or forgo a potential payout that could help offset the money they’ve spent fighting the crisis in their communities.

Stuart Hurd, the town manager of Bennington, said the town joined the national suit because it would give local leaders more leeway in deciding how to use potential settlement money. 

Hurd said that while Donovan has indicated that he wants any awards from the state’s cases to help local communities fight the opioid crisis, the Legislature would ultimately control how much to allocate to municipalities and how much to direct to the state’s general fund. A settlement from an individual lawsuit, though, would go directly to the town. 

“We get to determine how to use it,” Hurd said. “We get to determine how it best suits the needs of our community.”

Because Bennington pursued the suit before Polster’s move to expand the negotiating class, the town retained a private law firm, Sanford Heisler Sharp, that is also representing municipalities in Virginia and Texas in the MDL. The firm will receive 25% of any settlement the town is awarded. 

Hurd believes the town could be poised for a larger overall settlement because it is suing a broader range of companies, including pharmacy benefit managers, that are not defendants in the MDL. 

Hurd spoke last month at a meeting, organized with the Vermont League of Cities and Towns, where representatives from Sanford Heisler Sharp encouraged more local leaders to file individual suits. But because the new settlement model is now available to every town, city and county in the state, private law firms may play less of a role going forward.

Rutland City Mayor David Allaire said Wednesday that Rutland was planning to join the national litigation, but that city officials didn’t have the time or energy to work with outside attorneys. The city’s Board of Aldermen voted Monday night to stay in the national settlement class and forgo filing a separate suit. “We’re convinced, at least at this point right now, that this is the best way to go,” Allaire said.

That’s also the path Donovan is now recommending. “You can participate in the potential fruits of a settlement without having to file a lawsuit, hire attorneys, and most important incur additional attorneys’ fees and costs,” he wrote in the Nov. 1 letter.

But the dollar amount of a potential settlement is still unclear. In Kirby, selectboard members voted Monday night to opt out of the suit because they believed the payout would be insignificant. “We’re a small town,” said Town Clerk Wanda Grant this week. “We don’t feel we would benefit much from it.”

Donovan’s guidance to Vermont towns comes as two of the state’s lawsuits remain stalled in bankruptcy court. The state opted out of a proposed settlement with Purdue Pharma in September, saying the deal did not provide certainty of a payout. Because Purdue filed for bankruptcy as a result of that settlement, the remaining suits against the company and the Sacklers are now under the jurisdiction of a U.S. bankruptcy court in White Plains, NY.

According to the Washington Post, Judge Robert Drain on Wednesday agreed to block litigation in those cases until April. Donovan declined to discuss specifics on the bankruptcy court proceedings, saying only, “I think there’s many more chapters to be written in this negotiation.”

Read the story on VTDigger here: As opioid litigation expands, Vermont towns weigh their options.