HOWARD DEAN NEWS – RUTLAND HERALD, JULY 1997
Dean's subversion of the Bill of Rights through judicial appointments.
July 30, 1997 article from the Rutland Herald and Montpelier Times-Argus followed by commentary provided by the editorial staff of the Rutland Herald/Times-Argus and commentary by Thom Hartmann. Dean is frighteningly ignorant concerning civil/constitutional rights. Should anyone wonder why two judges (appointed within months of the below article) and Dean's best friend, Vermont Attorney General William Sorrell are fighting civil rights charges in Manhattan Federal Court currently. Two of Dean's judicial appointees have been subject to a federal injunction for the last 3 years for first amendment violations. -- Scott Huminski
Rutland Herald, Wednesday, July 30, 1997
GOVERNOR'S COURT PICKS STIR CRITICS
By Diane Derby
Vermont Press Bureau
MONTPELIER - As Gov. Howard B. Dean was mulling his second appointment to the Vermont Supreme Court earlier this month, he made little effort to mask his distaste for some of the court's recent decisions.
The direction of the five-member court needed to be "changed dramatically". Dean said. He was confident that his first appointment - naming Attorney General Jeffrey Amestoy to be the new chief justice last march - was a major step in the right direction.
"I'm looking to steer the court back towards consideration of the rights of the victims", Dean said three weeks ago in a radio interview with Bob Kinzel of the Vermont News Service. "I'm looking to make it easier to convict guilty people and not have as many technicalities interfere with justice, and I'll appoint someone to fit that bill".
Asked if that reflected a "get-tough-on-crime" approach, Dean responded: "I'm looking for someone who is for justice. My beef about the judicial system is that it does not emphasize truth and justice over lawyering. It emphasizes legal technicalities and rights of the defendants and all that."
Such comments may play well with the general public, but they have sent a chill through the collective spine of lawyers - particularly defense lawyers - around the state.
Throughout his six-year tenure, Dean's public chiding of the judiciary has led many lawyers to question the doctor-governor's grasp of constitutional law. In their eyes, Dean views the protections contained in the Bill of Rights as mere "technicalities".
It is a view that has been bolstered by Dean's inflammatory remarks - including his remarks that the state's Supreme Court has repeatedly allowed murders to go free.
"Dean is just ignorant. I don't think he understands what judges ought to do." Says Michael Mello, a Vermont Law School professor who teaches advanced courses in constitutional law. "He perceives the Supreme Court as being broken in some way and sees himself on a mission to fix it."
"That is pure, ignorant, political demagoguery", Mello charged, "Nonsense on stilts."
FROM THE PROSECUTION
Tension between the executive and judicial branches of government is not new, nor is it unique to the Dean administration. But rarely has it been played out on such a public stage.
Mello and other lawyers around the state are quick to offer high praise for both Amestoy and District Judge Marilyn Skoglund, whom Dean named on Monday to fill a high court vacancy left by the retirement of justice Ernest Gibson III.
Both jurists, along with the current members of the Supreme Court, are widely regarded within the legal community as independent thinkers who will not allow political pressures to sway their interpretation of the law. (see note below, sh)
But Dean's penchant for selecting prosecutors to fill judicial vacancies also has some defense lawyers questioning whether Vermont's court system is becoming too "one-dimensional".
Last week, Dean appointed Howard VanBenthuysen, a former state's attorney and onetime police officer, to a vacant superior court judgeship. In doing so, he passed over the names of private attorneys and at least one public defender.
Skoglund served as a prosecutor in the attorney general's office before being named a District Court judge three years ago.
The roster of District and Superior Court judges Dean has appointed over the past five years also suggests the attorney general's office has become a fertile ground for judicial training.
Adding to the mix, Dean's high-profile but failed effort earlier this year to appoint his administration secretary, William Sorrell, to head the high court was widely viewed as an effort to end-run the judicial nominating process. (Dean later named Sorrell to fill the attorney general's job left vacant by Amestoy's appointment.)
(Huminski Note: Cronies v. Qualifications, Dean's Dilemma)
"I don't think he has any regard for any process that gets in the way of what he wants to accomplish ... Look at how he was trying to move the justices around like chess pieces there.", said Leighton Detora, a Barre lawyer who said he was once a supporter of the governor, but is no longer.
"He's a doctor, and as such, he has all the learned responses to the legal profession - that we are just out here, and lawyers jobs are to make things more complicated."
"In his own arrogance, I think somehow he thinks he has a lock on truth and wisdom." said Detora, who is president-elect of the Vermont Trial Lawyers Association, but stressed that he was speaking only on his own behalf.
Dean dismisses such criticism, saying that his comments about "technicalities" getting in the way of truth and justice have been misinterpreted.
But Dean is quick to point to several decisions in which he says the Vermont Supreme Court went too far, particularly cases in which the court held that the state's constitutional protections went far beyond what the U.S. Constitution provides for.
(Huminski note: The various states have constitutions that are unique. They have various protections that many times are unique to a particular state or exceed the protections of their analogs set forth in the federal constitution. The authors of the US Constitution had no intention of limiting the rights of the inhabitants of the various states to those only set forth in the federal constitution. This is Dean ignorance at its finest.)
Dean said he believed the state's high court had especially taken the Fourth Amendment right against unreasonable search and seizure too far.
"In general, I think the court in the past has been overly restrictive about what evidence could be introduced," Dean said in a phone interview form Las Vegas, where he is attending the National Governors' Association summer meeting.
The result, said Dean, is that a jury doesn't always get a complete picture of "the truth" and defendants are turned free.
"For whatever reason," he said, "the old court really was very concerned with the rights of defendants." (Huminski note: The "rights of defendants" are defined in the 4th, 5th and 6th Amendments to the U.S. Constitution.)
Dean's views on constitutional protections were first challenged more than four years ago, when he fired the state's then defender general, E.M. Allen, over budgetary issues.
In a cost-cutting move, Dean sought to limit services of the public defenders office, while toughening the standards for those who qualify. But critics charged that Dean was turning a blind eye on an indigent defendants' right to an attorney. Poor criminal defendants, Deans critics noted, were a politically unpopular group.
Allen's successor, Defender General Robert Appel, has often found himself battling over budgetary issues with the Dean administration. Perhaps not surprisingly, Appel says he does not share the governor's view that the Supreme Court has gone too far in weighing a defendants' rights.
"I would say it is a fundamental difference in perspective between me and my boss," said Appel, "I don't think our Supreme Court, or any appellate court, lightly reverses a criminal conviction."
Dean and his legal counsel, Janet Ancel, spent Saturday interviewing the 11 candidates who were nominated for Gibson's job before he named Skoglund to the bench.
Much of the day was spent discussing judicial philosophy, as Dean quizzed the would-be justices on their views regarding several Vermont Supreme Court rulings.
One such case involved the court's decision to overturn a 1993 first degree murder conviction against Robert Durenleau, who was charged with helping his lover kill her husband following an affair.
The state Supreme Court found that the circumstantial evidence presented during the trial did not support the jury's guilty finding. In a rare move the court not only overturned the verdict, it entered an acquittal in the case, therefore preventing Durenleau from ever being retried.
"We do not readily overturn a jury's determination, but this court cannot shrink from its duty to protect an individual's due process right to conviction only by evidence of guilt beyond a reasonable doubt." The court wrote in reversing the conviction. (Huminski note: Up to this portion of the article, Dean has professed his problem with the 4th, 6th and now 5th Amendments Contained in the Bill of Rights, looking at the link below you will see his appointees have problems with the 1st Amendment as well. He's on a roll.)
The Durenleau case was one of five murder cases that the court overturned (the other four were remanded for retrial), prompting Dean to publicly portray the court as soft on crime while charging that its justices were allowing killers to walk free.
Dean also quizzed the judicial candidates about the court's 1982 decision to overturn the conviction of Edwin Towne after a Windsor County jury found him guilty of kidnapping and assault. In that case, the court said testimony introduced by a forensic psychiatrist amounted to hearsay and thereby violated Towne's right to confront the witness.
Dean argued that as a result of the court's decision, Towne's plea bargain agreement meant a shorter sentence, and a second chance for Towne to act as a predator. Several years later, Towne was arrested and subsequently convicted in the brutal slaying of a young girl. (Huminski Comment: After the overturning of the conviction on 5th Amendment grounds, the prosecutor could have sought to re-try the individual on the same original charges carrying the same penalty. Instead, the prosecutor involved chose to offer the favorable plea agreement carrying a lighter penalty. The decision merely followed the provisions in the Bill of Rights, a problem for Dean. Dean ignorance once-again.)
In the end, Dean insists that his mission is not to eliminate any constitutional protections, but rather to promote a more common-sense approach to the legal arena.
But others - particularly with a keen eye on constitutional protections - say Dean's approach is both simplistic and short-sighted. As Mello sees it, the rights that Dean sees as "technicalities" are there to preserve the rights of all citizens, including citizens accused of crimes, to be free from government intrusion.
"These are not technicalities. In my view, any lawyer who said that would be speaking irresponsibly", said Mello. "I am not a doctor, and I would not take it upon myself to tell Howard Dean how to practice medicine."
Huminski note: Now its time to look at Dean's judicial appointees to see if his mission to make "common-sense" more important than "legal technicalities" succeeded. I think Dr. Dean accomplished his mission in Vermont. Next mission -Dean "justice" for the United States. No thanks.
(see Howard Dean's legacy under fire)
Regarding the Vermont Supreme Court, their decision to cover-up the acceptance of a bribe by a state prosecutor is also before a federal court in Manhattan. There is more on that judicial body as far as blatant disregard for the law and corruption. Dean has opened up a can-of-worms, time for the public to take a peak inside. Vermont is seething with corruption.
(See also Judicial Watch - Watching Howard Dean, After digging up this article from microfilm at the Rutland Library, I can only imagine what is in Dean's sealed records)
Rutland Herald, Thursday, July 31, 1997 & Times-Argus
Gov. Howard Dean may be right when he says that most criminal defendants are guilty of one crime or another. That supposition is no more relevant than another: That most police officers and prosecutors are honest and dependable.
Dean is famously impatient with the "technicalities" that he believes too often allow criminals to go free. But the two above suppositions suggest why the technicalities that infuriate Dean are necessary constitutional rights protecting us all.
We all know, for example, that even if most criminal defendants are guilty, some are not. We also know that even if most police are honest and competent, some are not.
The constitutional protections that Dean derides protect the innocent and the guilty from the arbitrary, illegal, biased, capricious conduct that is the occasional work of those police officers who do not fall into the category of honest and dependable. Indeed, there is no way to protect the rights of just the innocent since the system to determine innocence or guilt must operate within the rules that protect everyone.
Is anyone going to argue that the police never abuse their power. Jack Hoffman write a column in the Herald three weeks ago describing the way police had violated the rights of a suspect in a Manchester murder case back the the 1980s. Judge Ernest Gibson III, sitting in Superior Court, ruled that the police had tricked a teenager into confessing and that the confession and part of the evidence they had seized could not be used in trial.
The Supreme Court upheld Gibson's findings.
Sometimes police get overenthusiastic, and they trammel on a suspect's right against self-incrimination or his right to protection against unwarranted search and seizure. Those are rights that apply to everyone, even those who may eventually be found guilty of a crime.
Dean's lack of interest in the Constitution came to the foreground as he discussed his views of the Vermont Supreme Court and what kind of person he would appoint as justice to replace Gibson, who retires today. He ended up appointing District Judge Marilyn Skoglund.
Dean has a history of appointing people with experience as prosecutors or with the attorney general's office, where Skoglund had worked before she became a judge. Of Course, a prosecutor with integrity can be as dedicated to justice as the best defense lawyer; conscientious representation on both sides is essential for the justice system to work.
But Dean's mistrust of the defense bar and his impatience with constitutional process are all part of his stunted view of the legal system. So is his stinginess with the public defenders office.
Dean's appointment of Skoglund and the discussion of his views happens to have occurred during the week when William J. Brennan Jr. was buried. Brennan was the retired Supreme Court justice who has been recognized as one of the most influential justices to sit on the Supreme Court, precisely because his rulings have secured for all Americans many rights we now take for granted.
The constitution is designed to place limits on arbitrary power, which means police cannot break into homes without a warrant in search for evidence, and they cannot coerce confessions from vulnerable, frightened people. Brennan helped establish these protections, and he is revered for it.
It would be nice if the shade of William Brennan could sit down with Howard Dean and have a little discussion about the constitution.
"Howard," he might say, "better to have a society where the occasional scoundrel goes free as a result of official misconduct than a society without laws to protect people from misconduct."
Such laws require judges of integrity and courage to defend them. In Vermont, the late judge Frank Mahady was one of the most well-known defenders of Vermonters constitutional rights. There's no reason even a former prosecutor or someone like Marilyn Skoglund cannot follow in the tradition of Brennan and Mahady.
Huminski note: After living in Vermont over a decade, I can attest to the fact that police and prosecutors have become bold and empowered knowing that the Dean appointed judiciary will look the other way concerning their constitutional transgressions and corruption.
(see also HOWARD DEAN IS WORSE THAN ASHCROFT and the PATRIOT ACT)
note: this article was available for years on Thom Hartmann's web site. Since I've been linking to it for several months now, its been removed. As of this writing his home page still has a synopsis and a link that does not work. An excellent analysis of Howard Dean's justice. Thanks Thom Hartmann. - Scott Huminski
OUR GOVERNMENT NEEDS GOOD CITIZENS
By Thom Hartmann
For men tied fast to the absolute, bled of their differences, drained of their dreams by authoritarian leeches until nothing but pulp is left, become a massive sick Thing whose sheer weight is used ruthlessly by ambitious men. Here is the real enemy of the people: our own selves dehumanized into "the masses." And where is David who can slay this giant? - Lillian Smith (1897-1966), U.S. Author, The Journey, Prologue (1954)
In July of 1997, Vermont governor Howard Dean announced that he wanted to appoint to the Vermont Supreme Court a justice who would consider "common sense more important than legal technicalities" and "quickly convict guilty criminals."
It's probably a testimonial to the good job public education has done in Vermont that there wasn't a public uprising against him ( although the Montpelier letters-to-the-editor section was filled with invective for several weeks). Certainly this is a statement that would not have been acceptable to the people who made Vermont the second independent Caucasian-run nation in North America (after Texas). The founding fathers of Vermont, which dropped its independent-nation status to become the USA's 14th state in 1779, knew all too well the dangers of a government unconstrained by the "technicalities" of the law. They'd seen it when the British forced them to house their soldiers, shot or hung them for speaking out against the King, and allowed them to engage in commerce or own property only if they gave a portion of their wealth to England. They realized that the government has most of the guns and all of the power, and that it's only "legal technicalities" which keep any government at bay. They fought and many of them died to put those "technicalities" into place. When politicians like Dean call for "swift and certain conviction of the guilty" (which actually means "swift and certain conviction of the accused, since a person is only guilty when they've been convicted ... at least as of the date of this writing) in the courts of the state "regardless of technicalities," I imagine our founding fathers roll over in their graves.
The average American, however, nods his head and says, "Yeah, get them criminals off the streets. Convict 'em quick and lock 'em up for good!" The average American rarely considers that he or she may be the next "criminal" facing the accusing finger of the government.
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