KEITH WHITCOMB JR.

Staff Writer

BENNINGTON -- According to data from the Vermont Center for Justice Research, State's Attorney Erica Marthage in her first term won fewer convictions on charges when taking cases to trial than her predecessor did in his fourth and last term.

Observers note, however, that a number of factors could account for differences, including changes to statutory penalties, types of cases, charging strategies and prosecutor performance.

The figures show roughly a 10 percent decline in the number of felony charges for which a conviction was obtained when they were taken to trial during Marthage's first term, beginning in 2007, compared to former State's Attorney William D. Wright's fourth four-year term, ending in 2006.

With a change in state's attorneys and staff members, new state sex crime statutes and an economic downturn, which many law enforcement officials say has had an impact on property crimes, the Banner has attempted to take stock of perceived changes in the number of convictions obtained in Bennington Superior Court Criminal Division.

The Banner requested data from 2003 to 2010, covering Wright's last term compared to Marthage's first as state's attorney. Wright was defeated in the 2006 election by Marthage, who ran unopposed for a second term in 2010.

According to the data, between 2003 and 2006, Wright's last term, he disposed of 1,441 felony charges. Of those, he took 55, or 4 percent, to trial and won 62 percent of the time. Marthage disposed of 1,396 felony charges during her first term, and of those took 54, also 4 percent, to trial, winning 50 percent of the time.

Felony charges reflected 23 percent of Wright's total disposed case load. Marthage had a similar amount at 22 percent.

Relatively few cases went to trial. Of Wright's disposed felony charges, 55 percent were from guilty pleas compared to Marthage's 44 percent. She dismissed 41 percent of her disposed felony charges while Wright dismissed 35 percent of his. The court dismissed 10 percent of Marthage's felonies and 6 percent of Wright's.

Individual charges

Max Schlueter, executive director for the Vermont Center for Justice Research, said the center collects data on individual charges that are disposed each month from the Court Administrator's Office, which in turn gets data from each county court unit. The center collects numbers of individual charges; a defendant can face multiple charges from a single incident and be convicted of all, some, or none.

Schlueter said the statistics also do not reflect a sample, but all charges that were disposed of. A charge is disposed when a guilty verdict is obtained, a plea deal is reached, or the court or state dismisses the charge. They can also be transferred to juvenile court. A very small percentage are listed as missing or unknown by the center.

It's important to note the distinction between charges disposed versus individual cases, dockets, and people. A single docket, which generally applies to one incident, can carry multiple charges for an individual. Typically, the state will file as many charges in a docket as apply, knowing it may drop some as part of plea negotiations, or that a jury may find the defendant guilty on some and acquit them on others.

The figures the Banner worked with did not involve motor vehicle charges.

The Vermont Center for Justice Research, now based at Norwich University, was established through a state Executive Order in 1987 to collect data on criminal and juvenile court proceedings with the idea it would be used to aid criminal justice agencies. It's managed by the Norwich Studies and Analysis Institute, which Schlueter said is affiliated with, but not owned by Norwich. He said justice organizations, the Legislature and the public often use the center's data or request it to be collected.

Marthage said in an interview she is not clear on how the center collects its data, but in any case does not view success in terms of statistics.

"My main issue is I don't have any idea where they are getting these numbers from," said Marthage in an interview. "I can't really draw any conclusions from it."

More difficult

The cases that most often go to trial are the more difficult to win, she said, those being sex crimes and domestic offenses.

Felony domestic assault charges appeared to be the hardest for which to obtain a conviction on at trial, with Wright only winning on 55 percent of his charges, and Marthage only winning on 20 percent. The number of cases was small for each: Wright took 11 felony domestic charges to trial while Marthage only tried 5. Felony domestics accounted for 12 percent of Wright's total felonies and 13 percent of Marthage's.

In his last term, Wright disposed of 169 felony domestic charges, which accounted for 12 percent of all his disposed felonies. He took 11, or 7 percent, to trial and won 55 percent of the time. Felony domestic charges accounted for 169 of Marthage's disposed felonies, or 13 percent. Of those she took 5, or 3 percent to trial, and won 20 percent of the time.

The data shows sex crimes are problematic at trial as well.

According to the data, Wright obtained a conviction on 52 percent of the felony sex crime charges he took to trial, 4 percent more than Marthage. Both went to trial with 11 percent of their total felony sex charges, which accounted for 16 percent of all their disposed felonies.

"Some states are complaint states, like Massachusetts, where the complainant says, ‘I want to drop the charges,' then the state has to drop the charges. Not here," Marthage said.

She said that in domestic cases, victims tend to change their minds or do not come off as believable to juries for different reasons. Other times defendants do not feel they have anything to lose at trial because their criminal records mean long jail stints even with plea agreements.

"Sometimes the issue is they just have such a record that they know the judge is going to give them some huge sentence if they plead to whatever," she said. "They just don't want to do the jail time. They have nothing to lose. I can tell you the difference with the sex cases is that, too."

She said mandatory minimums have made the plea agreement process more difficult. She cited the case of Rusty Brooks, a 36-year-old man sentenced in September to serve between 25 years and the rest of his life in prison for sexually assaulting a 12-year-old girl. Brooks was convicted on two counts of sexual assault on a victim under 13 while a jury acquitted him on a third charge.

"I was personally not in favor of minimum mandatory sentences on the sex cases," she said. Why wouldn't Rusty Brooks go to trial? If you have a charge where it's a minimum mandatory 25 years to life, why would you ever plead?"

She said her office will go to trial on cases she knows there is little chance of winning. "With the domestic stuff, sometimes it's to prove a point. Sometimes it's to show the defendants you will be held accountable."

Back to the office

Wright said in an interview that a prosecutor should win on tough cases a little more than half the time. "I wasn't shy about sending them back to the office for work," he said.

He said that on a serious charge, a trial should happen if necessary, and that the new sex laws have made plea agreements more of a challenge. "From what I've seen down in the court, there is a lot more charge bargaining than sentencing bargaining," he said.

Wright is now has a private practice in Bennington, taking criminal defense cases.

The sex laws, overhauled in 2008, are largely credited to the case of Michael Jacques, who has been accused of raping and killing his 12-year-old niece in Braintree. Jacques was a registered sex offender.

Former Deputy State's Attorney Kate Lamson, who worked under Marthage, said that in late 2011 she lost more than four domestic assault trials in a row. "A lot of the time I knew it was an uphill battle to get a conviction," she said. "Domestic cases are always really hard, just like sex assaults. It's just two people, and it comes down to the victim's word against the accuser."

She said that many times the victims in the cases are not onboard with the prosecution, and if a jury finds the victim disreputable at all they lean toward acquittal.

"I think juries, and rightfully so, are more reluctant to convict when the crime is more serious, even though they are instructed to not consider what the sentence might be," she said.

She said she believed in the cases she prosecuted, and the losses were not why she left the State's Attorney's Office, which she said was a personal decision.

"Judge (David) Suntag used to say to me, why don't you just pick certain cases that are really strong and don't make an offer," Marthage said. "Of course there are ways to manipulate your win-loss record. It's not important to any State's Attorney that I'm aware of."

She said she feels each case has to be looked at individually and she would rather been seen as fair over having a high rate of convictions. "That to me is so much more important," she said. "If the general public doesn't think that's important, then I can't help them with that." I'd rather have a handful of people walking around the community saying, ‘she's fair."

Marthage said sex crimes have to be approached differently now, given the high mandatory minimum sentences passed by the Legislature in 2008. She said that when an older person is facing a sex crime where the minimum is essentially a life sentence, they have less incentive to accept any kind of plea agreement, often forcing a trial.

"We spend a lot of time as a group talking about investigating (cases) that aren't even filed yet. (Deputy State's Attorney Christina Rainville) spends half her time going to meetings about investigations on things that are never even filed," said Marthage.

Post-conviction relief

She said her office does a number of things that would not show up on the center's figures, such as diversion and restorative justice, which the Legislature has been pushing and she supports. "For example, I do what's called the pre-charge program, that Bill never did. It's with the high school. We have resources officers that I trust. I review cases if they tell me they want to send it to a diversion program. I only see it again if they fail," she said.

She said the number of post-conviction relief cases in all counties has risen in recent years. Requests for post-conviction relief are handled through civil court and are where a defendant appeals a sentence.

"If we have a trial with multiple counts, any one count that's a conviction, to me, is successful. The tough thing is juries have changed over the years and I don't know how to measure that."

She gave the example of Michael Myers, 34, of Bennington, who in 2009 was sentenced to serve between 7 and 15 years in prison on convictions of reckless endangerment, leaving the scene of a crash, driving under the influence of alcohol, resisting arrest, and two counts of aggravated assault on a police officer. At his trial, he was charged with second degree attempted murder for allegedly trying to run a man down in his yard, but the jury found him not guilty of trying to kill the man.

Marthage said that in that case, she did not think the jury had much sympathy for the victim. There have been other cases, she said, that are the reverse of the Myers case, in which the state charges multiple crimes, loses on the lesser ones but gets a conviction on the major one. That would come off as a net loss, according to the center's data, she said.

She said she cannot be sure if the center's data reflects the changes that occurred in recent years with how the Bennington court treats docket numbers. Marthage said it used to be one charge meant one docket number when she was a deputy State's Attorney under Wright.

Schlueter said the numbers are indeed individual charges and were not affected by the change in how each court does dockets. Schlueter said the disposition data is only one factor in gauging what a State's Attorney does.

"There's lots of things that go into the process of moving a case forward," he said. "Some are in their control and some are not."

Marthage said the numbers do not reflect the number of active cases either office deals with or the work load.

"In 2003 and 2006 we were running two courtrooms," Marthage said. "There were some days when we had two trials going. The state still had the money to have two judges on."

State budget cuts have forced courts to reduce staff and operating hours, as well as place limits on hiring at State's Attorney's offices. Courts still run scheduled furlough days and for a time had one half day closing per week.

"But the charges disposed of in any given year may not be related at all to how many were filed in that year," Marthage said. "The reason we had two courts running is because we had such an insane backlog from 2003 to 2006. We had cases back then that were two years old and hadn't come up on a jury draw yet."

She said the court worked hard to clear the backlog, but docket numbers still dictate the amount of deputies each State's Attorney can hire, something she says also does not reflect the amount of work being done.

"I remember going to some calendar calls in that period when I was a deputy when there would be three boxes of files going to court."

Marthage started as a deputy under Wright in 2001 and worked there until 2005, running for the office in 2006.

"The nickname for them was fire sales when I was a deputy, when all the older cases would be put on and our goal would be to resolve as many as we could because were so back-logged," she said. "They are talking about disposed-of cases; that has nothing to do with how many charges were filed in any given year or what the backlog looks like."

Reach Keith Whitcomb Jr. at kwhitcomb@benningtonbanner.com