BENNINGTON — A prominent Bennington defense attorney’s complaint-filled email to the state Attorney General has revealed an ongoing feud between the attorney, Richard Burgoon, and the Bennington County State’s Attorney’s Office over perceived ethics issues, including numerous “conflicts of interest” accusations involving Burgoon over the past three years.
Burgoon has been one of Bennington County’s conflict council attorneys since January 2020. A conflict attorney takes on criminal cases on behalf of the state when a lawyer in the public defender’s office has a conflict of interesting with taking on a particular client. Conflicts can arise when an attorney is already defending another person who might have ties or is a witness to a specific criminal event, for example. Lawyers must reveal any conflicts of interest to the court as soon as they become known.
Burgoon wrote a lengthy email to Vermont Attorney General Charity Clark in passionate, “enough is enough” language, complaining of bullying and intimidating behavior by the Bennington State’s Attorney’s office, led by Erica Marthage. In that email, he continually referred to Marthage’s office as “your team.”
Marthage and several other attorneys in her office have filed at least four complaints with the state’s Professional Responsibility Board, part of the Vermont Judiciary, pointing out instances where they felt Burgoon violated professional ethics by not revealing what they consider “conflicts of interest” in cases where he represented a client and might have also represented a witness or victim somehow related to his client. Burgoon wrote there have also been numerous “anonymous” complaints about him that he insinuated came from Marthage’s office.
None of the complaints have led to any disciplinary actions against him or his Bar license.
“Alexander Burke has literally accused me of two felony crimes. But on his way to apparently hoping to see me arrested and placed in jail, I suppose he forgot something that we see down here quite often with Bennington State charges – facts.”
Burgoon wrote that in his 40 years of professional experience, he has never before witnessed such “professional mediocrity” and “overt sense of faux-confidence manifested by fear in the form of grade-school bullying.”
“It is truly something to behold — coming from ‘your team,’” he wrote Clark. “Enough is now enough, and as you are the ultimate prosecutor in our State, this is now formally brought to your attention. Enough is now enough.”
“It’s never our responsibility to reveal those conflicts. That’s his job from the start,” said Erica Marthage, Bennington County’s State’s Attorney, in an exclusive interview with the Banner. “But, we have to ultimately protect the system if we find them.”
According to Marthage, the state’s attorney’s office has the responsibility to make sure there are no representation issues that might affect the outcome of a trial after someone is convicted of a crime at trial, but that, under Vermont statute, an attorney is absolutely required to ask to be replaced as soon as they become aware of any conflicts.
One issue that could potentially overturn a conviction might be that a defense lawyer had a conflict that was never revealed.
Marthage listed four separate incidents over the past several years where she and her office filed official complaints with the Professional Responsibility Board because they felt Burgoon failed to recuse himself from a particular case where he had “obvious conflicts.”
In the most recent case, an assault with a deadly weapon against a Bennington resident named Johnathan Bell, Marthage said that at the same time he was representing Bell, Burgoon was assigned to represent the actual victim of the crime. Allegedly, Burgoon never recused himself until it became known to others.
“That’s an outrageous conflict,” Marthage said.
Marthage also suggested that a lawyer might say or do things as part of negotiations that, if he is representing someone else with a possible vested interest, might change that dynamic and destroy the confidential nature of plea negotiations.
According to Marthage, that wasn’t the first time there was a clear conflict involving Burgoon. She feels strongly that there has been a clear pattern of this happening ever since Burgoon started working in Bennington County.
“It’s been a challenge, from the absolute beginning,” Marthage said. “We only do these (complaints) if we really feel it needs to be done. I emailed him when he started because I felt bad, but it never got any better.”
“They’ve tried to disqualify me from at least a dozen cases,” Burgoon told the Banner in a phone interview after forwarding a copy of his letter. “That didn’t work. They have been filing these ethical complaints, which they should file if they’re legitimate, but the fact that they’re being dismissed at the screening stage for most of them should tell you something about the quality of their complaints.”
Burgoon feels that because he has been effective in defending his clients, he has been targeted by Marthage and her office.
“From the first day that I began as a volunteer, I wrote motions to dismiss (charges). And I was told by the public defender’s office that that was perceived as somewhat annoying to the state attorney’s office. I didn’t understand why, but when I took the conflict counsel role right after COVID hit, which meant there were going to be no trials, I had a caseload of about 120 individual dockets. I just thought that was normal, filing motions to dismiss, legitimate motions. I was told that that process was extremely frustrating and not accepted with a smile by the state attorneys.”
When asked about the Bell case in particular, Burgoon says he didn’t get the case until the eve of the jury draw and didn’t realize the conflict right away. “I said to the Judge. I obviously can’t do this. You saw it in my letter. There was no admonishment. She said, look, you know, I understand it happens. The client was right there. This happens. Nobody was upset about it. Sometimes these things get missed. The public defender makes these mistakes... Fine, you move on, but Marthage didn’t move on.”
“Listen, I’m not here to hurt anybody’s professional reputation. That’s the point. I’m here to do my job,” Burgoon says. “They have engaged in this extraordinary level of attack that clearly indicates that I’m a target.
“This is clearly not being done with an eye towards, hey, let’s give the new guy some help here. They’re having difficulty beating me in the courtroom. They’re frustrated by the manner in which I aggressively and passionately secure the legitimate rights of my clients. They can’t get me on their motions to disqualify me. They haven’t been able to get me on their ethical complaints. My opinion, based on my personal experience, is that they simply have run out of ways to illegitimately throw me off the game.”
“What I’m simply saying is, it’s not really about me. What in God’s name do you and your readers think they do to the indigent, uneducated, and poor in our community? That’s the point. You asked me what I wanted. I want somebody to take a hard look at what’s going on in here and not do what’s been done for years. ‘Oh, that’s just Bennington. Oh, that’s just the way things are down there.’ No, that’s wrong. Like, that’s absolutely wrong. Wrong is wrong. And you don’t dismiss it, the way we used to in the ‘50s, about Black people, the way we did in the ‘80s about women. You don’t just say, ‘Oh, come on, just stop this.’ People are being absolutely maligned here. And the point of my raising this is simply doing my job to advance the constitutional rights of indigent poor clients. They have, in my opinion, intentionally targeted the bullying and intimidation as government agents to try to stop me from doing my job.”
Marthage reiterated that the state’s attorney has an ultimate obligation to the integrity of the system, and that obligation is kept in check through the appellate in the post-conviction relief process. They are, according to Marthage, required to make certain observations about potential conflicts, and, if needed, report those conflicts. She also told us that it wasn’t just unreported conflicts with Burgoon. She told us of an incident involving a Bennington resident where Burgoon allegedly walked a shotgun into the Bennington Police Department — a piece of important evidence from a crime scene. The BPD confirmed the incident.
“Well, it made him a witness. And then he refused to tell us. He refused to tell the police where it came from. So he made himself a witness and said something like this was not from my client.”
Normally, complaints to the PRB are confidential. By forwarding his email to members of the press, Burgoon opened up the process, allowing not only himself, but others to speak openly about what’s happening. Burgoon told the Banner he reached out to the PRB to let them know he wanted this out in the public.
Marthage feels that Burgoon’s letter demonstrates a basic lack of understanding of how the criminal justice system in Vermont works. For instance, Marthage noted that her office is not a part of the Attorney General’s ‘team.’
“We are concurrent jurisdictions, separately elected,” Marthage said. ”To me, in the letter, he sounded like he’s charging us with corruption, that we’re doing this as a vendetta thing. I don’t know what kind of corruption he’s talking about. I just want to make sure defendants are getting full and competent representation. I’m responsible for any appeal or post-conviction relief. We shouldn’t be spending our time arguing amongst ourselves. I have no choice. When you level accusations like this at me, I just want to make sure that whatever’s going on between my office and him is not getting in the way of justice for his clients.”
Marthage feels that at the end of the day, her office’s energies need to be focused on the work they’re doing with their cases, not policing other attorneys.
“It’s such a rarity,” Marthage says. “It doesn’t happen. This is the worst I’ve ever seen in this individual case. I’ve never thrown my hands up like this. I don’t even know what to do. I’ve done everything I can. There’s got to be a certain level of confidence that comes with being represented in the courtroom, but it’s like, that’s just not the case. It’s really unfortunate.”
The point of Burgoon’s email, and the fact that he released the letter to members of the media, is most likely meant to draw the public’s attention to what he sees as ongoing harassment from Marthage’s office.
“I’m not, you know, tilting at windmills here,” Burgoon noted. “I’m not on a white horse. But I have heard enough complaints over a significant number of years about the same sort of behavior. And then I realized after this last one this would never stop. So, what do you do? Do you bury your head, acquiesce, and just push papers as quietly as possible, or you say enough is now enough. And I chose the last one. Because enough now is enough.”
Attorney General Charity Clark’s Chief of Staff Lauren Jandl confirmed to the Banner the receipt of Burgoon’s email, and also confirmed Marthage’s contention that state’s attorney’s offices are not, in fact, controlled in any way by the AG.
“Upon initial review, the Office has no knowledge of the facts or allegations raised in the (Burgoon’s) correspondence. We note that each state’s attorney is an independently elected official and is not a part of the Attorney General’s Office.
Jandl went on to say the Attorney General does not oversee state’s attorney’s, and that if someone has an ethical concern they may contact the PRB.
It is unclear if the Professional Responsibility Board will make public any possible findings or disciplinary actions against Burgoon. A quick check of their website did not list Marthage’s filed complaints in their pending disciplinary matters page, and an inquiry to the board has not been answered. For now, Burgoon continues to defend a full slate of clients and negotiate on their behalf.