Winning on a Technicality

by Jessica Faunce
Jessica Faunce ’20 was a Program on Human Rights in the Global Economy Fellow in the spring quarter of 2019.

On the second day of my co-op at the Prisoners’ Rights Office (PRO) in Vermont, on the way to monthly parole violation hearings at the Southern State Correctional Facility, the attorney I was with told me that the PRO runs a “Technicality Project” on the side. He explained that it was in some ways the opposite of the Innocence Project.

I laughed, but he wasn’t kidding. Almost all of the work I’ve done while at the PRO, which is part of the Office of the Defender General of Vermont, has involved asking the courts to release our clients from prison or reduce their sentences on “technicalities.” In a criminal justice system based on mass incarceration and infused with racial bias, “guilt” can take on a different meaning. As far as I can tell, the PRO’s technicality strategy has been surprisingly successful, particularly when it comes to getting courts to vacate insufficient plea agreements. This chapter of the “Technicality Project” started in 2017 when the PRO brought a case called In re Bridger before the state Supreme Court. In Bridger, my supervising attorney argued that Rule 11 of the Vermont Rules of Criminal Procedure requires the defendant to personally admit to the specific facts underlying the offense before the court may accept a guilty plea. The Court agreed and, in a subsequent case, held that this principle did not constitute a “new rule,” and therefore applied retroactively.

Since then, the “Technicality Project” has taken off; it has brought hundreds of Rule 11 challenges and has successfully overturned many of those convictions. Several of these cases have helped to clarify how Rule 11 applies and what courts must do in order to satisfy it.

On the second to last day of my co-op, my supervising attorney presented an oral argument for yet another “Technicality Project” case before the Vermont Supreme Court. The defendant had pled guilty to three crimes and was subsequently charged with another felony, making him eligible to be sentenced under habitual offender statute, which applies to defendants who have been convicted of three or more prior felonies and exposes them to a possible life imprisonment sentence. A few years after he pled guilty to his fourth felony, however, a lower court held that two of his prior guilty pleas had insufficient factual bases under Rule 11. Had this been known at the time he pled guilty to the fourth felony, he would not have been eligible for the habitual offender sentencing enhancement. He pled guilty to his fourth felony before challenging his prior convictions under Rule 11, however, and is currently serving his enhanced sentence.

In oral arguments, the State claimed that by pleading guilty to his fourth felony, the defendant waived his right to challenge the prior convictions. Had he gone to trial, they said, this would not have been the case. The PRO argued that the defendant could not have knowingly or voluntarily pled guilty to the fourth felony because, at the time, he was not aware that two of his prior plea agreements did not satisfy Rule 11, and he never expressly waived his right to challenge his prior convictions under Rule 11. Because the defendant believed he was facing the habitual offender enhancement when he was in fact ineligible for it, the PRO asked the Court to remand his case for resentencing.

While a decision on this case will not come for some time, Rule 11 and the other cases interpreting it have placed an incredibly important check on the State. This check would not have happened without the “Technicality Project.” It’s no secret that people who have been convicted of crimes do not enjoy widespread sympathy, and many folks on the outside do not like the idea of “criminals getting out on a technicality.” However, if the government can incarcerate people for years or decades, hand down life without parole sentences, and administer the death penalty, then at the very least it must follow the proper procedures. To say that an individual was released on account of a “technicality” is to say that the State failed to meet its burden in some way. “Technicality Projects” hold the State accountable when it violates the due process rights of the accused and incarcerated.

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