Howard Dean's Police State of Vermont

To get a true feeling of the judicial and law enforcement police state climate fostered by Dean in Vermont, it is important to look at the judicial appointments he made to fulfill his desire to expedite the judicial process by using such justices to "quickly convict guilty criminals."
Howard Dean systematically handpicked judicial appointments of judges at all levels that would subvert the Constitution and legislate from the bench. His most important and notable appointment was to repay Esther Sorrell and her son Billy for the life-long political guidance and alliance. Dean owed a great debt to the Sorrell family for mentoring his ascent in Vermont politics.

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." He then attempted to appoint Sorrell as the Chief Justice. Dean's zeal to appoint his long-time friend to the highest judicial office in the state hit a roadblock.

Unfortunately, Sorrell had absolutely no judicial experience, and noting this disqualifying factor, the Judicial Nominating Board refused to place William Sorrell on the short list for the top judicial spot. Dean became furious. He rejected the first list from the board that failed to include Sorrell. In describing Sorrell, Dean was quite generous with his praise of his friend's character and abilities stating that, "I have an enormous amount of respect for Sorrell as a human being and as a really smart lawyer." Dean insisted that Sorrell be added to the list. But again citing a lack of Sorrell's qualifications, the board forwarded to Dean a second list that did not include Sorrell's name.

An angry Dean admitted defeat on the Sorrell Chief Justice appointment, but he had a secondary plan that was almost as good. To take care of his friend and appease the Judicial Nominating Board, he appointed then Attorney General Jeffrey Amestoy to the Chief Justice spot creating a vacancy for Vermont Attorney General. Dean then promptly filled the Attorney General position with William Sorrell, succeeding in getting Sorrell appointed to a high position that could aid him in his police state ideology.

William H Sorrell was born on March 9, 1947 to Esther and Thomas Sorrell in Burlington Vermont. Billy, as he was known at the time, grew up in a family that was rife in politics through his mother, Vermont State Representative Esther Sorrell. William attended the University of Notre Dame, and graduated magna cum laude in 1970. William then moved on to Cornell Law School where he earned his Juris Doctorate in 1974.

After law school, William took a job as a Chittenden County Deputy State's Attorney from 1975 until 1977, and then became Chittenden County State's Attorney from 1977 until 1978. From there William moved into to private practice as a partner in McNeil, Murray, & Sorrell from 1978 until 1989. 1980 is when William would meet a young and politically ambitious Howard Dean through his mother Esther Sorrell. These two men together would rise through the ranks of Vermont politics, and ultimately form a bond that would create the police state controlled by Dean, and enforced by Sorrell.

As Howard Dean was making his way to the top through elected office, William Sorrell spent his career relying on appointments for his advancement through the power ranks. Knowing that Howard would soon be in a position of great power, William Sorrell left private practice and returned to the public sector as a State's attorney from 1989 until 1992 when his friendship and families guidance to Howard Dean's political foundation and career would see its first repayment.

In August 1991, Governor Snelling's sudden and unexpected death occurred, and Lieutenant Governor Howard Dean was sworn into the office of the Vermont's Governorship on the same day. In 1992, in what would be Howard Dean's first gubernatorial appointment, William H. Sorrell was appointed as Vermont's Secretary of Administration. Then, after five years in that position, Dean would attempt to ascend Sorrell to highest appointed position in the land with the 1997 Chief Justice appointment fiasco. Since his ascent to Attorney General, William Sorrell has been able to chameleonize his true political ideology, and like his partner in crime in the Governor's office, enjoyed strong voter support by winning re-election six times, and is still Vermont Attorney General today.

Sorrell played a crucial role in assisting Dean with his obsessive direct control over all levels of judicial appointment to complete the hierarchical foundation for Dean's police state governance. Within two months of Dean's infamous statement of his desire to subvert the Bill of Rights and appoint judges not interested in "legal technicalities," that would "quickly convict guilty criminals," two of Vermont's most corrupt judges would be appointed to the bench who would ultimately be found guilty of civil rights violations by a federal court in Manhattan at the conclusion of the case that is the subject of this book.

The first of these is Judge Nancy Corsones. She was appointed in 1997 by Howard Dean mere months after Dean's "legal technicalities" rant, and served on the bench in Bennington County Court until being transferred to the bench in the Rutland County Courthouse. Despite being adjudicated a Civil Rights violator, Judge Corsones still presides over criminal, civil, and family matters in the Superior Court of Addison County in Vermont. The Second is Judge M. Patricia Zimmerman, also an adjudicated civil rights violator and appointed directly after the "legal technicality" standard was declared by Dean, is currently presiding over criminal, and family cases in the Superior Court of Windsor County, Vermont. These two judges were typical of Dean's judicial appointees. Dean successfully loaded up the judiciary with judges that satisfied the Dean philosophy of anti-Constitution zeal.

With all the pawns in place at judicial and appointed levels, there are indisputable indications that Vermont Law under William Sorrell, at the beckoning of Howard Dean, led to drastic miscarriages of justice. One example is Robert ("Woody") Woodward, who was massacred in Brattleboro, VT in 2001 by local law enforcement officers. It involved 7 shots from police revolvers fatally wounding Mr. Woodward, with some of the shots fired into his body while he was bleeding on the ground in the fetal position.

Dean and Sorrell, both irrationally obsessive police advocates, put the cover-up machine into gear. Sorrell authored a biased report overlooking much of the testimony and evidence. When Dean was asked to appoint a special independent investigator, he backed up his old crony and stated that Sorrell was a "really smart lawyer." One of Dean's so-called "legal technicalities", the Fourteenth Amendment, is supposed to prohibit a biased decision-maker. But something as trivial as the Constitution did not stop Dean from deciding not to usurp his friends report by refusing to appoint an independent investigator regardless of the very obvious conflict of interest with Sorrell.

Pursuant to the Constitution, Dean should have disqualified Sorrell and appointed the independent investigator, but Dean knew what would be found would in no way help promote the police state ideology Dean had in place. As Dean's crony and life-long friend, Sorrell has given Dean a Vermont state with an Attorney General willing to bring false and frivolous arguments into the court system, and has covered up the political corruption portrayed to the U.S. Supreme Court while refusing the idea of any political prosecutions. In return, Dean gave Sorrell virtually unchecked power to fulfill the collective agenda with the support of a judiciary teeming with Dean appointees hand-picked to undermine the Bill of Rights.

In Sorrell's possession is a sworn transcript and audio tape of a major America corporation's illegal conduct constituting extortion and possibly a host of other crimes. To date, the reason is unknown for Sorrell's cover-up of the criminal enterprise set forth in the audio tape, aside from the fact that any such reason would be incompatible with legal and judicial philosophy under Dean. Also in this questionable category is Sorrell's cover-up of an alcoholic beverage retailer's activities that operated without federal or state licenses for 8 years during the time Dean was Governor, and despite a report from Vermont's own liquor investigator that the illegal conduct existed, William Sorrell's response was to immediately cover it up and make it go away.

The tales of judicial and governmental corruption amongst Dean, Sorrell, and his cronies are rampant, and continued straight through Dean's presidential Run in 2004 and on into his DNC Chairmanship. Prior to the presidential run, Sorrell remained busy in court fighting on Dean's behalf to keep his gubernatorial records sealed. In light of the fact that Attorney General Sorrell fought against the interests of the people without regard to his sworn duty to them, one can only imagine what vile governmental conduct Sorrell and Dean are covering up in the records.

Sorrell's friendship with Dean cost the Vermont taxpayers thousands of litigation dollars despite various prohibitions for Sorrell's representation of Dean under attorney conflict of interest ethical principles. Clearly neither Dean nor his crony Sorrell has any respect for the Bill of Rights, ethical considerations, or the rule of law when it doesn't fit into their dubious agendas.
This saga began when Judicial Watch, a conservative, non-partisan educational foundation that promotes transparency, accountability and integrity in government, politics, and the law, sought and was repeatedly denied access to Dean's gubernatorial records. At the time, then Governor Dean cited his presidential aspirations as the basis for denying the public access to the records, reportedly telling Vermont Public Radio, "well---there are future political considerations. We didn't want anything embarrassing appearing in the papers at a critical time in any future endeavor." In an unprecedented move to seek blanket executive privilege, Governor Dean, the Vermont Secretary of State Deborah Markowitz, and Vermont's State Archivist negotiated a Memorandum of Understanding hoping to supersede the State's Public Access Laws and shield the records from public scrutiny for 10 years.

A memorandum on August 21, 2002 to David Rocchio, Governor's Counsel, from Gregory Sanford, Vermont State Archivist, illustrates the beginnings of the conspiracy to seal Deans Records. It also has the tone that Gregory Sanford initially had foundering support for the dubious agenda. In the memo Sanford says,

"You asked me to further develop the idea that executive privilege closures might not be bound by a date certain, but rather reflect the Governor's status (i.e., being President, presidential candidate) at the time the records would normally be open under a memorandum of understanding. What we discussed was the possibility of adding to the memorandum of agreement: 'In the event Governor Dean is President or a presidential candidate at the time the agreed executive privilege closure ends, the closed records will remain closed for an additional ____ years.' Having proposed that approach in our initial brainstorming session, I do not support it. In the same spirit of freely exchanging ideas, let me explain why.
The reality is that gubernatorial records are part of our collective institutional (state government) records and thus are important to government continuity across administrations. If Dean Administration records are inaccessible, if the intent of policies cannot be documented, subsequent administrations might have an easier path imposing their own interpretations of Governor Dean's initiatives and eliminating them."

Ultimately, Dean's "advisors" and William Sorrel were able to get State Archivist Greg Sanford back on board, and the agenda for evading the release of Dean's record was laid out in black and white. After a flurry of meetings to address the best language, on September 18, 2002, a memorandum from Gregory Sanford to Secretary of State Markowitz and other Dean cronies established that the State Archives would accept a ten year closure. In it Sanford states,

"We have no bargaining chips under Killington v. Lash. The governor gets to say what is executive privilege and there is no requirement that the records ever become open. Ten years is better than twenty four, and we should take what we can get. If we insist on ten years, the Governor could simply deposit the records with no opening date; deposit fewer records (there is no records management oversight; even if there was it would be provided by a gubernatorial appointee); or invoke other reasons for closure that are open ended (lawyer/client privilege, the exemptions in 1 V.S.A. 317, etc)."

After the roadblocks to the records had been put firmly into place by Dean, Sanford, and Markowitz, Judicial Watch filed a lawsuit on December 3, 2003, seeking media wide access to some 450,000 of Howard Dean's gubernatorial records, naming all three individuals as defendants, as well as the State of Vermont. But the day that the answer to the action was due in Washington County Superior Court in Vermont, a defiant Democratic presidential candidate Dean responded by saying, "We decided to take the campaign completely out of this, whatever Sorrell wants to do, he can do." In repayment for a lifetime of friendship and political acquiescence, Sorrell took up Dean's cause in addition to representing the State of Vermont.
On February 13, 2004, the Vermont Superior Court ruled against Dean and the State of Vermont. Sorrell appealed to the Vermont Supreme Court who agreed to hear the case and held oral arguments on March 14, 2005 during their annual Vermont Law School session in South Royalton, VT. On November 4, 2005, the Vermont Supreme Court, including Dean's appointees, reversed the decision of the Superior Court allowing Dean to keep his gubernatorial records sealed.

There is a substantial body of law regarding representation of two clients whose interests may be adverse to one another such as they were in this case. William Sorrell acted as legal representation for both Howard Dean and the State of Vermont in the suit, whose interests were clearly adverse. Rule 1.7(a) of the American Bar Association's Model Rules for Professional Responsibility covers conflicts of interest.

"A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer."

Accompanying the ABA Model Rules is the ABA Model Code, which sets forth the Ethical Considerations (EC) that could create a conflict of interest, and the Disciplinary Rules (DR) that requires an attorney to decline representation in the event that they simultaneously represent more than one party with likely adverse interests. EC 5-15 of the Code concerns the potential for differing interests of multiple clients being represented by one attorney.

"If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interest; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. If a lawyer accepted such employment and the interests did become actually differing, he would have to withdraw from employment with likelihood of resulting hardship on the clients; and for this reason it is preferable that he refuse the employment initially."

Accompanying EC 5-15, is DR 5-105 (A) of the Code which requires a lawyer to,

"decline proffered employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests."

The Vermont Bar (VBA) issued an opinion supporting DR 5-105 for applicability in Vermont. The Vermont Bar Associations Advisory Ethics Opinion 92-15 takes language directly from DR 5-105,

"a lawyer may not represent a client whose interests are adverse to those of another current client. This applies even if the two representations are unrelated. Multiple representations for matters in litigation are allowed only in limited instances where each client consents after full disclosure and there is a clear showing that either client's respective interests will not be adversely affected by the representation of the other client."

In addition to the direct conflict of interest by William Sorrell in violation of the American Bar Association's ethical standards, the State of Vermont has its own set of ethical standards. As a lawyer and Attorney General of a State, William Sorrell was duty bound to the rules set forth in both. The Vermont Rules of Professional Conduct Rule 1.7 deals with conflict of interest matters and follows the language of the ABA Model Rule 1.7 (a) very closely.

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

Resolution of a conflict of interest problem under this rule requires the lawyer to: 1) clearly identify the client or clients; 2) determine whether a conflict of interest exists; 3) decide whether the representation may be undertaken despite the existence of a conflict, (i.e., whether the conflict is consentable); and 4) if so, consult with the clients affected under paragraph (a) and obtain their informed consent, confirmed in writing.

In the Judicial Watch case, Attorney General William Sorrell acted on behalf of Howard Dean and the State of Vermont who clearly had adverse interests. As originally pointed out by Archivist Sanford in his initial memorandum to Dean's aid, it was in the best interest of the people of Vermont that the records not be allowed to remain sealed, the exact argument Judicial Watch was making. Despite this conflict with his Vermont constituency, and no informed consent provided in writing by any party, William Sorrell continued throughout the duration of the case to represent the adverse interests of the people, and those of Howard Dean, whose political career hung in the balance of the outcome. Clearly Sorrell chose the duty owed to friendship over his duty owed to the people of Vermont.

To summarize Vermont's police state tactics that Governor Dean was able to put in place, one need only look at the argument of Vermont Attorney General Sorrell in Randall v. Sorrell before the United States Supreme Court. Sorrell's argument urged that Vermont needed the lowest political campaign spending limits in the United States because of rampant political corruption in Vermont. As DNC Chair at the time, Howard Dean commanded DNC attorneys to file a court brief supporting his friend Sorrell. At argument, Chief Justice Roberts questioned Attorney General Sorrell as to just how many political corruption prosecutions he had brought in Vermont in the previous 9 years. Sorrell's response -- NONE.

Officer Haverkoch used the opportunity presented by Ryan's illicit liquor sales, and the misguided perception of Scott's "harassment and threats," regarding the food in prison comment as a way to use them both. Under threat of arrest and criminal prosecution for the illicit liquor sales from Haverkoch and State's Attorney William Wright, Michael Ryan not only agreed to flat-out perjure himself regarding the civil suit between Mr. Greenawalt and Mr. Huminski, he also agreed to testify that Scott was harassing and threatening him so Haverkoch had cause to file a criminal complaint against him in what had quickly evolved into a small town Vermont conspiracy. Haverkoch charged Scott with obstruction of justice for supposedly harassing a witness in a civil case. In Haverkoch's probable cause affidavit for charging Scott, he stated,

I believe the Defendant to be Guilty of obstruction of justice based on the following facts:
1.) This affiant (Haverkoch) checked about case# S0087-BcC of the Bennington County Superior Court. The case is Dwayne Greenawalt v Scott Huminski & Eastern Equipment Services Corp. The case was filed on 03/11/1996. The witness list is the same as the one transferred to US Bankruptcy Court in Rutland, VT.
2.) The case was stayed in Bennington County Superior Court when Huminski filed in the US Bankruptcy Court on 04/12/96
3.) Michael Ryan was listed as a witness for Greenawalt in both the cases.
4.) Affiant (Haverkoch) took a written statement from the victim Michael Ryan that on 01/12/1997 at about 1:10PM he received a telephone call from the defendant about being on a witness list for an upcoming civil trial in Superior Court, in Bennington County, State of Vermont.
5.) Defendant told Ryan that he had evidence that Ryan was sending wine to under age individuals and that he had the shipping papers. The defendant also told Ryan that he would be going to trial.
6.) Ryan is fearful that the defendant will harm him if he testifies in the upcoming trial.

Haverkoch based his entire claim of obstruction of justice on the fact that Scott Huminski contacted and harassed a witness that would be testifying against him in a civil case in Bennington County. However, that was simply not true. The witness list was exclusive to the bankruptcy case in the United States District court located in Rutland, and had never been a part of any civil matter. Haverkoch knew this, but without claiming to find the witness list in the civil case file, he would have no grounds for the criminal charges. Henry Haverkoch orchestrated a case, and then perjured himself in a sworn affidavit to trump up criminal charges where none clearly existed. The Accountant's attorney, Jonathan Cohen, refused to even discuss the Superior Court matter in a taped conversation on 11/03/1997, citing the existence of an automatic stay in the civil case which prohibited any discovery, including the generation of witness lists. In an affidavit, Mr. Cohen flatly denied that a witness list ever existed in the civil case which Haverkoch consistently referred to in his affidavits.

Henry Haverkoch hailed from New Jersey. His appearance and disposition resembled that of a cop on a network primetime cartoon, but he had a ubiquitous evil side. Earlier in his career, Officer Haverkoch was headed for firing from the police force and possible jail time for several publicized disciplinary matters. In a December 5, 1986 Bennington Banner article entitled, Judge: Patrolman's Lies Threatened Justice, writer Cole G. Libby illustrates Haverkoch's tainted record.

Judge Robert Grussing said Thursday that two Bennington police officers threatened the justice system by telling lies on the witness stand.

In an Oct. 31 ruling acquitting a North Bennington man of assaulting a police officer, the Vermont District Court judge said the two officers broke the defendants rib, bruised his leg, and then lied about it under oath.

"I came off the bench with the feeling that the officers lied to me," Grussing said in a telephone interview Thursday. "Lying interferes with the way the judicial system should work. If people are not going to tell the truth then the system is not going to work."
Fernald said Thursday he is considering a lawsuit against the town of Bennington to follow up Grussing's ruling.

"I've spent $2000 playing this game," he said adding that the money went to lawyers' fees and he hopes to get some back.

Grussing's decision sparked an internal investigation by the Bennington Police Department. Under attack are Patrolmen Henry Haverkoch and Frederick Gilbar, who arrested Fernald for driving under the influence after a one-mile chase through North Bennington.

The court transcripts which were released Thursday, give a clear picture of the officers' and Fernald's versions of the events while illuminating Grussing's reason for not believing the officers' testimony.

In his decision, Grussing said he did not believe Haverkoch's testimony that he sat in his cruiser after the chase while Gilbar subdued Fernald.

The transcript shows that Haverkoch pulled his cruiser around the right side of Fernald's truck to the front. After reaching that point Haverkoch testified that he went around the rear of the truck and reached Fernald after Gilbar had him on the ground.

Fernald, however, testified that as he stepped out of the truck he faced Gilbar who was approaching from the rear of the truck, Fernald said that at the same time he had his hair pulled from behind.

Grussing asked Fernald" "You said that you saw Officer Gilbar?"

"Yes, I was facing him, and he was coming from the back of the truck." he answered.

Grussing: "So he was not the one who pulled your hair?"

Fernald: "No, he was not. Someone grabbed me from behind which would have been the front side of the truck."

Grussing said he didn't know how the case should be handled after his decision and said it wasn't in his domain as a judge to carry the case further. Wright has questioned why Grussing didn't refer the case to the attorney general.

Twenty days after Grussing filed his decision, Wright brought the case to the attention of the attorney general. Wright had disassociated himself from the case because of his close relation to the officer in question.

Wright was Haverkoch's best man in his October 1984 wedding and went with many officers and friends on a group vacation to Bermuda in early October. Haverkoch was also present.
Town Manager Kevin Ryan said he hopes the police department investigation will be complete in a week but said he might not make the findings public.

Explaining that he wants to either exonerate or prosecute the officers, Ryan said he will share the department's findings with the attorney general.

"I suspect if we decide anything at all we will touch base with [assistant attorney general David] Suntag because we don't want to jeopardize his investigation down the road."
Ryan said punishment may range from a written reprimand to firing if it turns out either officer committed perjury.

According to a source in the police department, it was the second time in two months that Haverkoch had been the focus of an investigation. The source said Haverkoch received a written reprimand on Nov. 7 after a fellow officer found him asleep on a Route 7 pull-off north of town Oct 19.

To save his position as a police officer Henry Haverkoch, who died in 2000, strategically positioned himself alongside the most influential law enforcement officials in the state, including his closest friend, William Sorrell's crony, State's Attorney William Wright. Despite his official recusal from the case, it is almost certain that the friendship between the two saved Haverkoch's career. Judge Grussing ultimately found that Haverkoch made false statements under oath in a criminal matter and dismissed the criminal case because of police misconduct. Although the word perjury wasn't used by the judge, it is clear that police perjury was the reason for dismissal of the case. But Haverkoch's career dodged a bullet thanks to Wright.

State's Attorney William Wright had an interesting background himself. According to reports from his High School alumni, Wright was the shunned class tattle-tale who would raise his hand and disclose to the teacher who was chewing gum or breaking some other petty rule. Unable to physically qualify for the FBI, Wright chose to become a prosecutor with his first short-lived position being in Fort Lauderdale, FL. However, things failed to work out there, so Wright came home to the low pay of a Vermont prosecutor. Prosecutor Wright went on "guys only" vacations with local police officers, and in admission of his intense conflict of interest with any person who carried a badge, he disqualified himself from every criminal matter involving an accusation against law enforcement.

When William Wright ran uncontested and won the State's Attorney position, he was featured in the October 17, 1986 Bennington Banner in a critical article entitled, Police Advocate Runs for State's Attorney. The Banner article revealed an overzealous, pro-police prosecutor who had similar police state ideology to his bosses William Sorrell and Howard Dean. An op-ed representing the opinions of numerous members of the Vermont Bar Association, including judges, state's attorneys, legislators, public defenders, and high-profile lawyers responded to the Banner article by writing,

The public is indebted to the Banner for its revealing Oct. 17 article on William D. Wright's candidacy for State's Attorney. Your reporter painted a man who sees his job as a contest between good and evil, cops versus robbers, and us against them. A man who tags along after the police, on some occasions carrying a pistol in a black valise, and who has a rope noose hanging from his office window sill.

The article gave a chilling portrait of a person frighteningly ignorant of the delicate balancing act of the very powerful office he will apparently assume by default.

In our legal system the public prosecutor is held to a higher standard. Cannon 7-13 of the lawyers' Code of Professional Responsibility states:

The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. This special duty exists because:
(1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers such as in the selection of cases to prosecute;
(2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and
(3) in our system of criminal justice the accused is afforded the benefit of all reasonable doubt.
With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice. The prosecutor has a duty to disclose exculpatory evidence, and act accordingly by dismissal, reduction of offense degree, or reduction of punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he believes it will damage the prosecutor's case or aid the accused.

In our system, a mature, responsible, and dispassionate prosecutor is the first line of defense for our civil liberties. The founders of our country, through bitter experience, took seriously the threat of unchecked state power. They established some ground rules between the citizens and the state, the most famous of which are the Bill of Rights and the United States Constitution.
Let us all fervently hope that the solemn responsibilities of this high office impart some measure of humility and wisdom to our sole candidate. The world of criminal prosecution is seldom a simple contest between good and evil. A prosecutor's job is, above all, "to seek justice," which is a far more complex responsibility.

The following Friday after speaking to Mr. Ryan, Scott received a message on his answering machine from the Bennington Police stating that they had some questions for him and he needed to come down to the police station. Not connecting the phone call to any kind of criminal activity, without hesitation Scott left for the police department to find out what was going on. However, as soon as he arrived, there were no questions to be asked. He was immediately informed that he was being charged with obstruction of justice for harassing a witness and placed under arrest. Officer Henry Haverkoch was contacted and informed that Scott had been taken into custody, and he immediately reported to the station, off-duty, to personally handle Scott's booking process. Despite Haverkoch's presence, jail booking went routinely until Officer Haverkoch placed a call to the Bennington Court Clerk to be given a bail amount for Scott.

On February 2, 2001, Huminski moved in the District Court for a preliminary injunction prohibiting the defendants from enforcing the May 24 and May 27 Notices, as well as any future trespass notices, until the court rendered a decision on the merits of the case. On February 27, 2001, the court (J. Garvan Murtha, Judge) preliminarily enjoined the Defendants, "from issuing or enforcing any notices of trespass against Huminski that prevented him from accessing court property where such notices are based solely upon Huminski's public expression of his political opinions so long as the expression does not disrupt or threaten the orderly performance of court business." The court reasoned that Scott's allegations of First Amendment violations were sufficient to demonstrate that he would suffer irreparable harm if the injunction did not issue, and that he was likely to succeed on the merits of his claims.

Judge Nancy Corsones was transferred from Bennington County and was now presiding in Rutland County. The remaining presiding judge in Bennington disqualified himself from Scott's again-pending criminal case as a result of previous legal consultation with Scott. Consequently, Scott's criminal case was moved to Windham County where it would be heard before District Court Judge Paul Hudson. Furthering Scott's position that a personal vendetta by Judge Corsones's and other state officials existed, the August, 1999 ruling by Judge Hudson slammed Judge Corsones in her ruling to vacate the plea agreement and reinstate the obstruction of justice charges.
Judge Hudson, in his opinion, finally noted Scott's argument all along about the allegations of harassing Michael Ryan. He completely dismantled Judge Corsones' twisted logic and rationale, finding wholesale violations of federal and state constitutional provisions by Corsones actions in the case. Judge Hudson put on the record that Scott had filed bankruptcy, and the underlying dispute in which Michael Ryan was a potential witness became a contested matter in the Federal Bankruptcy Court, but was never a matter in civil litigation as Haverkoch had perjured himself in earlier affidavits. Judge Hudson also noted that Michael Ryan never actually testified in any court action against Scott. Judge Hudson further held,

The court notes that Judge Corsones' order automatically reinstating the charges against the Defendant effectively deprived him of the opportunity to plead in bar his prior conviction for disorderly conduct. See State v. Nash, 144 Vt. 427,435 (1984); In Re Pernicka, 144 Vt. 319, 323 (1984) (lithe proper time and method to challenge a subsequent charge on the grounds of former jeopardy is at the time such a charge is instituted"). Thus, because the Defendant was not afforded a new arraignment, and because double jeopardy is a jurisdictional issue which may be raised at any time, this question is now properly before the court.

A review of the plea change on March 19, 1998 before Judge Corsones establishes that the Defendant's plea was voluntary, knowing and intelligent. The plea agreement was discussed on the record, Count II was reduced to disorderly conduct and the fine was imposed. The Defendant paid that fine and surcharge in compliance with the deferred payment order. Despite a reference to a collateral agreement, the transcript reflects that the acceptance of the plea was unconditional.

The transcript of the March 19, 1998 proceedings before Judge Corsones reflects that Mr. Langrock and Mr. Lavoie engaged in plea discussions which resulted in an oral (non-written) agreement. It was represented by Mr. Langrock as a "global resolution."
Mr. Lavoie informed the Court:

"What the State intends to do is to dismiss Count 1 without prejudice. Count 2 will be amended to disorderly conduct. The Defendant will enter a no contest plea to the disorderly conduct and the recommended disposition will be a $100.00 fine. There is a collateral agreement that has some ethical implications, and I need the Court's okay on this ..."

Following an ethical discussion, Mr. Lavoie continued:
"What we're contemplating is that Mr. Huminski will dismiss certain civil actions that he has pending against the victim in this case. Those - his dismissals there will be without prejudice."

The fine was paid in accordance with the deferred payment agreement. Thereafter, the Defendant dismissed the two civil actions in State court, but he represented to the court in those cases that he was doing so only because he had been threatened with arrest for pursuing his civil claims. Moreover, the Federal suit continued in the name of Defendant's wife. The State considered these actions to be transgressions of the plea agreement, and filed a Motion to Vacate the Plea dated April 9, 1998. The Defendant filed a response, and the motion was heard before Judge Corsones on July 6 and August 20, 1998. On September 4, 1998, the Judge filed her Order granting the State's motion and vacating the adjudication of guilty for disorderly conduct, striking the fine and surcharge and reinstating both original charges. The Court further granted Mr. Langrock's Motion to Withdraw. Since the date of that Order, the Defendant was not re-arraigned as discussed above. Defendant's Motion to Dismiss with prejudice requires a re-examination of the plea agreement itself, the imposition of a final sentence and the order vacating that disposition.

The State, in this case, improperly implies a term which was not presented to Judge Corsones. At no point in the far-flung, dangerously informal plea discussion in this case was there ever disclosed the consequence of the Defendant's wife continuing or re-filing the same or similar lawsuits. The agreement contemplated a civil dismissal by the Defendant, and he did that. The State got exactly what it bargained for: a dismissal without prejudice.

The State's interpretation of the plea agreement which led to Judge Corsones vacating the sentence and adjudication is probably unenforceable anyway. The Defendant's right to seek a legal remedy for wrongs by use of the Court is guaranteed to him unequivocally by the Vermont Constitution. Ch. I, Art. 4; Ch. II, §28. At no point in the plea change proceedings before Judge Corsones is any knowing, voluntary, and intelligent waiver obtained of the Defendant's prospective right to bring suit.

Even less tenable is the State's position that suits brought in the name of the Defendant's wife transgress the plea agreement. She was not even a party to this litigation and could not be bound in any way by the plea agreement. She participated in no surrender of her rights to bring suit, and the State's basis for seeking rescission of the plea agreement is simply void.

The plea agreement presented orally to the trial court in this case had no specific term for revocation. In fact, it is referred to as only a "collateral" term of this agreement which, at law, means it is an additional or supplementary term. Black's Law Dictionary, 4th Ed. p.327. Under contract law, this means that should the Defendant fail to dismiss his civil lawsuits, it would only be incidental rather than a material breach and would not disturb the primary plea agreement. The State's attempt to imply a term for reinstatement of the charges is unavailing under Vermont contract law. The State's dismissal of one count and the Defendant's plea; adjudication and sentencing on the second count in exchange for the collateral dismissal of the Defendant's lawsuits constituted the entire agreement. An acceptance of a proposal may be accomplished by conduct as effectively as though done verbally where it appears the acts of the parties conform to the terms proposed.

The language and acts of a party to a contract will receive such operation as the opposite party is fairly entitled to afford them under the circumstances. In this case, the Defendant relied, as he should, upon the State's offer and the plea agreement and the State was bound to the specific terms it negotiated.

Second, it cannot be found that the Defendant breached the agreement. In fact, he dismissed his civil actions although the Superior judge initially declined his motion because he complained about the sanctions in the criminal case. His plea agreement did not prohibit complaining. The continuation or re-filing of the cases by the Defendant's wife are well beyond any colorable scope of the plea agreement. Completely lacking from the oral plea agreement presented to the trial court was any enforceable terms about the Defendant's prospective ability or disability to sue in the State or Federal court. The Vermont Constitution, Ch. II, §28 provides the Courts of justice to be open "for the trial of all causes proper for their cognizance; and justice shall be therein impartially administered, without corruption or unnecessary delay." Vermont Constitution, Ch. I, Art. 4 is even more emphatic: "Every person within this State ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which one may receive in person, property or character; every person ought to obtain right and justice, freely, without being obliged to purchase it; completely and without any denial; promptly and without delay; conformably to the laws." There is no credible evidence or law to support any waiver before the trial court of the Defendant to sue. Most certainly the Defendant's wife was not a party to this prosecution and her right can in no way be foreclosed by the enforcement sought by the State in this case.

The third factor is that the Defendant's breach of the agreement was material to permit the State to revoke the agreement. For reasons discussed above, the Defendant's purported breach was not only immaterial, it is void.

Finally, there is whether the Defendant had notice and an opportunity to cure any breach. For reasons of voidness, the Defendant had nothing to cure.

The State advanced its Motion to Vacate on grounds of (1) the Defendant's lack of voluntariness in entering into the agreement, and (2) the need to provide relief to the victims. Neither ground can prevail. Expressly set forth in V.R.er.P. 32(d), the Motion to Withdraw a plea "may be made only by a Defendant." It is not up to the State to protect the Defendant from himself. The Defendant, at all times, was represented by highly competent defense counsel. The State's motion on these grounds is a transparent attempt to attack an agreement with which it is no longer satisfied. The State represented the State, and presumably the State is satisfied that it was voluntarily a party to this agreement which was accepted by the Court, sentence imposed, and fine payment made.

The second part of the State's argument requires examination of the relationship of the State and the victims of crime. The general duty of the State's Attorney and his deputies is to prosecute offenses committed within the county. V.S.A. §361(a). Full time State's Attorneys and deputies are prohibited from engaging in the private practice of law. V.S.A. §362. The position taken by the State in its argument on August 13, that the reinstatement of the prosecution was to protect the victims, appears well beyond the scope of any prosecutor's authority.

It appears that the civil actions of the Defendant and his wife are most appropriately adjudicated in their respective fora. It seems well beyond the function of restitution or any notion of the State's duty to protect its victims to cause a Defendant and his wife to give up the constitutional and statutory rights they have to seek a legal remedy, whatever its merit, in another forum.

For reasons discussed above, the re-prosecution in this case was barred by double jeopardy, and for reasons set forth at length, this case is now DISMISSED WITH PREJUDICE.

It was later confirmed that at a public event that was attended by both Judge Corsones and Judge Hudson, Judge Corsones became outwardly hostile while loudly and aggressively confronting Judge Hudson about his ruling and the language he used therein to describe the judicial impropriety of Corsones and her complete lack of respect for the constitution. Scott's "Judge Corsones: Butcher of the Constitution" sign was right on target. Judge Corsones' desire to silence Scott by courthouse banishment was a result of the TRUTH being made known in a very public and embarrassing way to Corsones. Her ego couldn't tolerate the criticism.