The Making of Useless Law 
By Karen Kerin

In the wake of over 60,000 people signing a petition for Jessica’s Law to help protect our children from pedophiles following the horrendous murder of Brooke Bennett, the summer study group of legislators agreed to present such legislation, but with a terrible oversight insisted on by the prosecutors; led by our attorney general. Most people are unfamiliar with how the criminal law operates and do not understand the oversight, so in a nutshell, this is how it works.

Police present a case against an alleged criminal to the states attorney or the attorney general for prosecution. The prosecutor evaluates the evidence to determine if it is sufficient to prove guilt beyond a reasonable doubt. All too often, the accused is indicted when there is insufficient evidence to convict for the actual crime(s) involved. In pretrial motions and negotiations, the defense establishes that there is insufficient evidence, leading to plea bargaining to lesser charges in more than 97% of the indictments. Even with that many cases plea bargained, the cases that do go to trial and are presumed by the prosecutors to be good cases, produce more acquittals than convictions. Worsening the matter is the Vermont Supreme Court has ruled that, under our Vermont Constitution, a speedy trial must happen or the case is dismissed. This puts additional pressure on criminal indictments that were filed without sufficient evidence or were unduly delayed by the maneuvers of the attorneys. What is wrong with this picture?

Police are doing what they are trained to do, which is not to be scientific investigators. Indeed, there are many instances of the police inadvertently destroying evidence by trampling on the crime scene or in numerous possible ways compromising the chain of evidence collected. There is a herd mentality that pervades police forces and most folks will have noticed that at a car accident or a crime scene, there are numerous police vehicles and police officers swarming the site. As good scientifically trained crime scene investigators will tell you, there is only one good examination of a crime scene and that is the first fresh examination for collecting evidence. 

The problem is compounded by the prosecutors. Prosecutors, seeking to bring closure to a crime, charge an accused without carefully examining the evidence to determine that a conviction beyond a reasonable doubt can be obtained. Once the wheels of justice are in motion, the pretrial efforts reveal just how fragile is the case against the accused. Plea bargaining ensues with disastrous results. Some innocent people are terrified by the prospect of lengthy prison terms and when offered much shorter terms of confinement by pleading guilty to lesser charges, opt to plea out. Often this is the direct result of insufficient defense counsel due to an underfunded and overwhelmed public defender office. At the other extreme, the truly guilty accused person is happy to take a lesser sentence, thereby escaping the justice deserved under our statutes. While not as destructive of justice as the innocent pleading guilty, it does corrode genuine justice. But the wreckage of justice still has more yet, when cases the prosecutors think are winners go to trial and fail to convict for lack of evidence beyond a reasonable doubt. In this case, the taxpayers have paid a lot of money for judge, jury and both prosecutors and defense attorneys, rendering the taxpayers secondary victims.

There are some other problems that are important to understand. Our system of medical examiners is amateurish beyond belief. Any death that is out of the ordinary needs to be autopsied by a forensic medical examiner, not by an ordinary medical doctor and certainly not by an assistant medical examiner (AME) that our current statutes allow. Forensic medical examiners are a part of a properly staffed crime lab. All evidence collected by the scientifically trained crime scene investigators should be photographed in place with identifying markers and then tagged or bagged by the investigator to be delivered to the lab for analysis. The number of scientists staffing a forensic crime lab is relatively small in number as much of the work is routine. For special scientific scrutiny, outside consultants or part time scientists can be called in for specific tests. 

Examining the costs for the current melee compared to a properly staffed lab and investigators independent of the police or prosecutors appears to indicate a huge savings for taxpayers with a far better judicial outcome. The first cost is for a location, which ought to be no more than a building nearby the state police detectives who need to be the liaison between the prosecutors and the lab staff. Apart from the first cost for space there is the cost of lab equipment, but again, much of that is available already either with the state police or the health department. The second cost is personnel, but again, some of those folks are already available from either the police or health department. Some others will be needed apart from the transferred staff, but that is likely no more than two or three scientists for the lab and perhaps as many as six or eight scientifically trained crime scene investigators. The latter should be college graduates in diverse scientific subject matter with additional training in crime scene investigation. The only other costs are the routine expenses for travel, expendables and materials for both the lab and the investigators and a fund for equipment upgrades or replacements. Also needed is a secure evidence vault at the lab and readily available for cases that must go to trial with the professionals as witnesses. 

Compared to the cost of police beyond the first responder and the needed detectives to work with the crime lab staff, the cost of prosecutors and public defenders pursuing inadequate cases, the time wasted by judges and other court officials, the cost of juries for cases without evidence that provides proof beyond a reasonable doubt, and the costs associated with incarceration pretrial and post sentence, the establishment of an independent lab will save many tax dollars and most importantly, provide more substantial justice. It is easy to accept the judicial economy argument when it is offered, because the crux of the argument is that the cost of a jury trial is avoided, but that is wrong under our U.S. and Vermont Constitutions which guarantee a right to a jury trial for the crime indicted, not some deal making like an Arab bazaar. To remove that right by trick in the form of plea bargaining defeats substantial justice. In effect, the prosecutor gets a conviction (even if it is not for the crime committed), the defense attorney has spared the accused the more severe punishment that should be his fate if guilty, and the judge has removed a case from his docket, but justice suffers. The law does not exist for the benefit of the lords and ladies of the court now any more than under a feudal system. Neither does anyone deserve to be convicted because they are "vehemently suspected" of a crime. That was clearly established in the retrial of Saint Joan of Arc after her burning at the stake. Today, we can do better and we should to keep pedophiles away from our children by not allowing plea bargains to facilitate pedophiles gaining early release to kill in an effort to cover up their crimes. 

It is time for Vermont to get into the 21st century in dealing with crime. A proper crime lab, unfettered by the political influences of the police or the prosecutors, will provide evidence beyond a reasonable doubt for prosecutors to gain convictions for the actual crimes committed and not some lesser charges that return evil to the streets to threaten the safety of our children and even ourselves.
 

Karen Kerin is a former candidate for Attorney General.