Judges explain silence in Brooke Bennett case
By LOUIS PORTER Vermont Press Bureau | August 18,2008
MONTPELIER — Lawmakers reviewing the criminal laws and procedures of the state in light of the slaying of 12-year-old Brooke Bennett have heard from members of the public, from administration officials and from probation officers. They have talked about the case with advocates for abused children, defense lawyers and prosecutors.
But they have not heard from the judges directly involved in the previous conviction of Michael Jacques, the man now held in connection with his niece's kidnapping, and they are unlikely to do so.
The judicial branch of government has sent documents related to judges' decisions — including a letter from Judge Amy Davenport who reviewed Jacques' probation — and a member of the bench will likely testify about court procedures in general.
But the lack of discussion about the cases in question frustrates some, including Senate Judiciary Chairman Richard Sears of Bennington.
He and other lawmakers, now holding hearings into Jacques' history and the status of the state's criminal justice system, have many questions about the length of Jacques' sentence in a previous case, the decision to remove him from probation and what effect a lack of communication about the case may have had, Sears said.
"I think it is unfortunate we are not going to be able to get first-hand information about various judges and the decisions they made on Michael Jacques," Sears said. "There are all kinds of questions we would like to understand the answers to."
But there are very good reasons for judicial silence on specific cases, judges and lawyers said. For both professional and practical reasons, judges remain somewhat separated from the political process, they said.
"It really bothers me when judges take the hit," said Stacy Chapman, a Rutland lawyer and president of the Vermont Bar Association. "Part of the problem is that the public does not understand or appreciate the fact that the judicial branch is not political."
"When you have a judge dealing with a case that is in the news it would be totally inappropriate for the judge to talk about that," Chapman added.
In her letter to Sears, Davenport explained why she believes the canons of judicial ethics — that is the rules governing how judges act — preclude her from testifying about the case.
"My concern is not that I would be asked about the facts related to the current charge. I know that you and your committee members would never do that," Davenport wrote. "My concern is that, if Mr. Jacques is convicted on the current charge or some new charge arising out of the incidents reported in the news, he will then have to be sentenced. At sentencing, his entire criminal record, including all the facts that surround the '92 case will become relevant and any public comment I might make now about the '92 case would later be viewed as a comment that might affect the outcome of the sentence or impair its fairness."
But that does not entirely satisfy Sears.
Jacques is being held on federal charges, not state charges, and his 1992 conviction is closed. If judges can — and do — talk about decisions in old cases during judicial retention hearings (that's the hearing once every six years when lawmakers can decline to keep judges on the bench), why can't they do so other times, Sears wondered.
"I am frustrated," Sears said. "Part of the role of the Legislature is not only to make laws, but to investigate government actions."
However, the matter now under discussion is quite different from closed cases that are discussed during retention hearings because Jacques has been charged in a new case, Chapman said.
"Perhaps, down the line, there will be additional state charges. The facts simply are there are further charges that are pending or may be contemplated," he said. "If a case is closed and there is nothing further judges can talk about that."
And it is not only the judge involved who is prohibited from talking about current cases, but any judge.
Given those rules, Judge John Wesley, now sitting in Windham Family Court, declined to discuss the cases being discussed by lawmakers.
He acknowledged the tricky spot that high profile cases put judges into in general, however.
"It constantly puts us in the position of having to try and balance the duties we have under the cannons of judicial ethics, which are pretty strict, against what we understand is the legitimate interests of the public to know more in particular circumstances why judges do what they do," he said.
Under the ethical guidelines established for judges, their first duty is to hear the facts in specific cases and consider them impartially, not to work on larger policy matters as legislators do, Wesley said.
"We hear cases on specific facts," he said. "We have to be impartial."
There is another, practical, reason for such caution, he said by telephone.
"Our decisions, whether they are written or stated on the record, are subject to appeal," he said.
"Any out-of-court involvement in controversies arising from judicial decisions almost always runs the serious risk of placing our impartiality at issue the next time we are confronted by a case presenting analogous facts," Wesley wrote to some of his colleagues recently.
The rules do bind judges' hands somewhat, said Professor Cheryl Hanna of Vermont Law School, but they could and should do a better job of explaining what they can about why they make decisions, Hanna said.
For example, she said, Vermont's system of judicial training and education is one of the best in the country, but few in the public know that.
"I don't want the Legislature and the public to punish judges by removing the discretion they have," she said. "I think judges could help that cause by being more pro-active about engaging in public debate."
The legislative committee examining the state's laws and procedures dealing with sex offenders will meet again at 10 a.m. Thursday, Aug. 28 in the Statehouse. The committee meeting will be followed by a public hearing starting at 5 p.m.
Contact Louis Porter at firstname.lastname@example.org.