Defense Attorneys resist some changes to court procedures

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(Host) Defense attorneys are resisting legal changes proposed by prosecutors in the wake of the Brooke Bennett kidnapping and murder.

The defense lawyers say that the changes to court procedures and the rules of evidence could result in innocent people being wrongly convicted.

VPR’s John Dillon reports:

(Dillon) Throughout the summer, the Senate Judiciary Committee has conducted a comprehensive review of Vermont’s sex offender laws.

The review was prompted by the kidnapping and murder of 12 year old Brooke Bennett. A convicted sex offender has been charged with her kidnapping, and lawmakers are looking for ways to strengthen the investigation and prosecution of sex crimes.

Prosecutors took a list of proposed changes to the panel. They want juries to be allowed to consider evidence of a suspect’s prior offenses. And they’ve proposed limiting a defendant’s right to put a witness under oath and take testimony prior to trial.

The prosecutors argue that these pre-trial depositions drag out cases and can intimidate witnesses.

But defense lawyer Maryanne Kampmann recalled cases that unraveled when prosecutors realized the witness lied. She told the committee that the depositions are a vital part of seeking justice for their clients.  

(Kampmann) "And when the complaining witness can’t answer them or when her or his answer changes 180 degrees from when the police officer asked it, they recognize they have a problem with the case.”

(Dillon) Defense lawyers said the pre-trial depositions help them decide when the evidence is strong – and when to counsel their clients to plead. Jason Sawyer is a lawyer practicing in Burlington.

(Sawyer) "Depositions serve an extremely important tool at getting to the truth of the matter. And without depositions you have unintended consequences. The unintended consequences are trials are lengthier, and you have a lot more trials.”

(Dillon) Police and prosecutors also want juries to be able to consider a defendant’s past convictions or arrests.

Evidence of so-called prior "bad acts" can be used under limited circumstances, such as to establish a motive for a crime.

But defense lawyers warned that changing the rules as broadly as the prosecutors want could result in some innocent people being found guilty.

David Silver is lawyer who practices in Bennington.

(Silver) “People will convict a person of sexual assault if they find out they find out he committed another sexual assault whether or not he’s guilty of this one.”

(Dillon) Washington County State’s Attorney Tom Kelley said the committee should look at other states and see what is allowed. He said federal courts do allow juries to consider a defendant’s history of prior arrests.

(Kelley) “I understand the defense concerns but I think it would absolutely improve the state’s case for the jury to understand prior offenses. But there are reasons why that’s not let in now, because our rules wouldn’t permit. But I think we should look at that.”

(Dillon) The Judiciary Committee will outline its proposed changes before lawmakers return to Montpelier in January.

For VPR News, I’m John Dillon in Montpelier.

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