Sixties . . . Sixty . . . Get it? 

State v. Downing, 2020 VT 97 &
State v. Downing, 2020 VT 101

By Elizabeth Kruska 

I teach a class at Vermont Law School about adjudication of criminal cases. We start with bail, since bail is one of the first things that happens in a criminal case. Bail is often somewhat misunderstood. The point of bail is to ensure a defendant’s appearance at future court dates. Bail is not meant as punishment. Why? Well . . . . Before someone is adjudicated guilty they’re innocent, and constitutionally speaking, we don’t punish the innocent.

Generally speaking, the presumption is in favor of bail. By that I don’t mean that it’s presumed money bail gets set in every case. Bail can mean money to be paid to a court in exchange for release, but it can also mean a combination of conditions for a defendant to follow pending trial.

However, there’s also a recognition that some offenses are so serious that a person shouldn’t be released (or able to be released by posting bail) prior to trial. These cases fall into two categories. First are cases punishable by life imprisonment. If you think about it, this makes sense; the life imprisonment cases are generally the most serious kinds of cases we have. (There’s an exception to this for persons facing habitual offender enhancements; that’s a different discussion for a different day.) Second are cases that aren’t punishable by life imprisonment, but are violent felonies, and where there’s no condition or combination of conditions that can ensure prevention of future violence to any person.

It’s the second of the two where we find ourselves with two separate opinions.

Mr. Downing was charged with burglary into an occupied dwelling, simple assault, unlawful mischief, violation of an abuse prevention order, and aggravated assault. The aggravated assault charge is the one that qualifies this case for a hold without bail order.  I’m not going to go into the facts because (a) they’re set forth in the opinions, and (b) the case is still pre-trial and I’m not about to do anything that looks like an analysis of facts that might taint a jury pool. I take stuff like that very seriously.

Mr. Downing was arraigned on these charges on September 2, 2020 and was held without bail. He asked for a “weight of the evidence” hearing, which was scheduled for and held on October 1, 2020.

Quick break: the court can’t just hold someone without bail in a case like this without making proper findings. The court has to find that the matter is a felony where there is an element of violence, that the evidence of guilt in the case is great, and that there is no condition or combination of conditions the court could impose to protect any person. The way the court gets to this is by having a hearing and considering the weight of the evidence. If the court finds by clear and convincing evidence at that hearing that the evidence of guilt is great, and also finds the other factors, then the court can hold a defendant without bail. Sometimes a defendant can have this hearing at the time of arraignment, but more commonly this hearing gets held later.

Very important point number two: in a case where someone is held without bail on a violent offense and where it’s not punishable by life imprisonment, the defendant is entitled to have his or her trial within 60 days. If a trial is not possible within 60 days, and the delay is not attributable to the defendant, the defendant is entitled to a bail hearing.

So, the question is . . . within 60 days of what, exactly?

And thanks to SCOV, now we know it’s within 60 days of the time the person gets held without bail.

As I mentioned above, Mr. Downing initially was arraigned on September 2 and was held without bail at that point. He asked for further hearing, which didn’t happen until October 1. Way back in March (remember March?) the Vermont Supreme Court issued amendments to Administrative Order 49, basically halting in-person court appearances except in certain circumstances. The amendments to A.O. 49 have been extended several times, and currently go through the end of the year. Meanwhile, the courts have worked very hard to figure out how to conduct as much business as possible. One thing we haven’t been able to do yet is to re-introduce criminal jury trials, which, as long as we still have a Sixth Amendment, must be done in person.

And now this leaves Mr. Downing in a tough spot. He got held without bail and by statute and by the Vermont Constitution is supposed to have his trial within 60 days. But he can’t because trials aren’t happening. There’s a plan to do the first one in Windham County on or about December 7, 2020 (this isn’t a secret: it’s on the judiciary website and is widely discussed among the bench and bar).

So that leaves this question: where does the 60 days start? He was initially held without bail at arraignment on September 2. He asked for a prompt weight of the evidence hearing, which happened on October 1. He argued that he should be immediately entitled to bail (rather than being held without bail) because there’s no way he’s going to be able to have a jury trial within 60 days of having been held.

The trial court ruled that his 60-day clock started ticking after the decision in the weight-of-the-evidence hearing. He appeals. Bail appeals are heard by single justices. The court rules that what’s contemplated is the scheduling of a bail hearing when it’s apparent the 60 days would be up without a trial.

There’s also another case questioning when the 60-day clock started, and there it was determined that the operative date for counting the 60 days was the date of the court’s decision after the weight-of-the-evidence hearing. The other piece of this is that the prior case being used as precedent was also a published single justice opinion. What isn’t clear is whether that case was precedent or not. Mr. Downing’s single-justice opinion very thoughtfully flagged this issue.

So, in the first go-round to the Vermont Supreme Court for Mr. Downing, a single justice affirms the trial court, and agrees the 60-day clock starts at the time of the weight-of-the-evidence-hearing decision.

Mr. Downing appeals the single-justice finding. The Vermont Supreme Court, in a 4-justice panel, reverses and remands the case to the trial court, and orders that the 60-day clock starts from the moment someone is held without bail regardless of when the weight-of-the-evidence hearing happens.

In short (because this is a long-ish opinion and I’m summarizing two opinions together), the point of the statute and relevant constitutional amendment is to hold defendants accused of serious, violent offenses, but not to hold them indefinitely pre-trial. Trials for folks charged with these offenses are meant to happen quickly since there’s no way they can be released. If there’s a delay, and the delay is not attributable to the defendant, the defendant is entitled to a bail hearing. A bail hearing ensures that bail gets set, and from there, whether the defendant posts bail or not is really up to him.

 SCOV says, hey wait a minute. This is all supposed to happen for a defendant in 60 days. But for Mr. Downing, if we follow the rule that it’s 60 days after the weight of the evidence hearing, he actually would have been held without bail for 89 days. My cursory understanding of math is that 89 is more than 60. This isn’t what was envisioned by making the 60-day rule. Truthfully, courts schedule as well as they can, and for serious matters like this, they really do try to get defendants in front of judges as soon as possible. But adding another month (or more, depending on court scheduling) before a weight of the evidence hearing is held, and waiting for the outcome of that hearing is inconsistent with the spirit of the law. SCOV actually overrules its earlierdecisionfinding that the 60 days started with the issuance of the weight of the evidence decision.

SCOV decides the statutory language, “after bail is denied” means the moment bail is denied. From the perspective of a defendant, it really doesn’t matter whether there’s a subsequent consistent decision at a weight of the evidence hearing; the defendant knows he or she has been held without bail that whole time. SCOV also looks at similar provisions in other states, and reasons that this is how it’s done in other places, as well.

SCOV doesn’t get to the point of deciding about whether single-justice bail appeals are precedential, so I suppose we leave that for another day.

So, SCOV reverses and remands Mr. Downing’s case to the trial court for a bail hearing. Having concluded his 60 days would have run starting on September 2, and that there’s no way he was getting a trial within 60 days (through no fault of his own, of course; he didn’t cause COVID-19, and the subsequent court safety precautions), his remedy is a bail hearing.