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The Vermont Supreme Court Considers Rights to Review Evidence and Sufficiency of Bail Hearings Following Probation/Parole Violations by a Felon

In State v. Harley L. Breer Jr., 2016 VT 120, (Nov. 17, 2016), the Vermont Supreme Court affirmed the trial court’s holding, which denied Defendant’s motion to review an earlier hold-without-bail order. Defendant claimed that, due to evidence he believed to be exculpatory, and an inadequate opportunity under Criminal Procedure Rule 32.1 to confront witnesses and refute allegations against him, that he should not be held without bail.

Issue: Defendant was convicted in 2003 of three felonies and later released on conditions of probation. In 2001, he was charged with new crimes—including second-degree aggravated domestic assault—and as a result, was charged with his fifth and sixth parole violations. At his arraignment following these new charges the court issued a hold without bail order, specifically citing defendant’s sixteen prior convictions and seven probation/parole violations. Between these charges and the time of Defendant’s bail hearing in 2014, Defendant was charged with numerous more crimes and a total of nineteen probation/parole violations. Defendant filed a motion to review the hold-without-bail order on the grounds that he had new exculpatory evidence for the original crimes that should be considered, and that he had not had an opportunity to confront the witnesses against him or refute the State’s allegations. Defendant had, however, received a 3-day bail hearing in which he presented considerable testimony and cross-examined witnesses. The trial court also found that the exculpatory evidence he cited was testimonial in nature, and therefore that it should be assessed by a jury, but was not appropriate to be considered in a bail hearing.

Holding: The Court found that the 3-day bail hearing satisfied Defendant’s rights under Criminal Procedure Rule 32.1, and held that the trial court decided correctly that Defendant’s touted “exculpatory” evidence was subject to determinations of fact and credibility, properly suited to a jury. Therefore, his motion to review the hold-without-bail order was denied properly by the trial court, and affirmed on appeal.

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