The Vermont Attorney General’s office reviewed the history of 80 potential jurors with the state’s Department for Children and Families — without their knowledge or consent — during jury selection for a trial involving child abuse in Brattleboro earlier this month.
The attorney general’s office used confidential DCF files to shape the jury in a trial challenging whether the agency failed to protect children from abuse.
Attorneys interviewed by VTDigger this week described the searches of confidential information as “bonkers,” an “abuse of power” and “likely illegal.” Officials from the Attorney General’s Office disagreed, but wouldn’t offer a legal rationale defending its actions.
Vermont’s Defender General Matt Valerio said the Attorney General’s Office may have broken the law by accessing confidential records for improper reasons. According to Vermont statute, non-DCF agencies are only allowed to access unredacted records of child abuse investigations “for purposes of child protection.”
“While it is not unusual for lawyers to use private investigators or other general available legal means to investigate a jury panel in a big case, I find this highly unusual,” Valerio said in an email. “I also believe that it is likely illegal.”
Valerio declined further comment while the trial is underway in Windsor County civil court.
The Attorney General’s Office accessed information about unsubstantiated reports of child abuse and neglect involving potential jurors.
The plaintiffs sued the state for failing to protect their two grandchildren from frequent parental abuse during a four-year stretch when they were 7 to 12 years old.
Robert Appel, a civil rights attorney and former defender general, said the purpose of the attorney general’s searches didn’t appear to comport with state statute.
“The fact it’s the attorney general who unearthed it not for legitimate juvenile protective purposes, in fact one could say to the contrary … is pretty hinky in my book,” Appel said.
“In principle, yeah this is an abuse of power,” he added. “To me it’s taking unfair advantage of your authority as a state.”
The assistant attorneys general handling the case — David McLean and David Groff — only had access to the DCF records because of their position with a state agency. Attorneys who don’t work for the state would not be able to access the same information when vetting potential jurors, Appel noted.
James Valente, a lawyer on behalf of the two children (now young adults) whose grandparents are suing DCF, said this is the first time in his career he’s heard of the state performing what he said are essentially “background checks” on potential jurors.
“They’re disclosing information that’s confidential under statute simply because these people are unlucky enough to be picked for this jury,” Valente said.
The review of jurors’ history with DCF was a significant flip-flop on privacy protections by the state. Earlier in the case, the Vermont Attorney General’s Office asked the court to shield the names of individuals with past DCF involvement, Valente said.
In November, lawyers for the state said the disclosure of DCF information is allowed “only for the purpose of providing services to the child.” The assistant attorneys general moved to redact all names mentioned in documents about the abuse case and asked the court to refer to all individuals — children and adults — by their initials. The state’s lawyers argued that information in DCF files is confidential “except in circumstances not present here.”
However, that motion was denied by the court, which found that the plaintiffs’ lawyers, Valente and his co-counsel, would suffer unfair prejudice if all names were redacted. “Such a process would likely result in confusion in the minds of the court, the witnesses, and the jury,” Judge Robert Gerety concluded.
But when it came time for jury selection a few months later, the attorney general appeared less concerned about personal privacy and other confidentiality issues.
In a statement to VTDigger, the Attorney General’s Office said the state’s use of DCF records was “appropriate,” noting that it shared the information with the plaintiffs’ counsel to ensure a fair trial.
“A fair and impartial jury is a cornerstone of our system of justice,” the statement said. “To create such a jury, it is common practice that potential jurors are examined by both the plaintiff’s and defendant’s legal counsel during the jury selection process to determine if there are, among other questions, existing or pre-existing relationships with any of the parties or witnesses involved in the litigation.”
DCF Commissioner Ken Schatz declined to comment on the agency’s policies regarding record disclosure, referring questions to the Attorney General’s Office.
Valente said the state looked at information about potential jurors, including reports of allegations that were not substantiated by DCF case workers or even accepted for review.
Citizens in the jury pool may not have known that they had been reported to DCF.
“There’s plenty of random people who get reported to DCF because of some comment a child made to a teacher or something like that,” Valente said. “DCF investigates plenty of suitable parents who did nothing wrong.”
There are two different rules governing DCF’s disclosure of records: one for substantiated claims of abuse or neglect, and another for unsubstantiated claims.
Claims are generally substantiated through an administrative or legal process, and then go into the state’s child abuse registry, which a day care center might use to vet job applicants, for example — if the applicant signs a waiver allowing that search.
Then there are records of unsubstantiated claims, which could be everything from erroneous complaints to issues that DCF did not classify as child abuse. The second class includes a wider array of records, such as assessments and investigative records, and is subject to stricter disclosure rules.
In fiscal year 2019, the family services division of DCF received 20,498 calls reporting suspected child abuse or neglect. DCF initiated investigations or assessments in 6,087 cases that year.
An experienced child welfare lawyer, who requested anonymity for fear of retaliation from the attorney general, said it is inappropriate to use both classes of records for jury selection, even though the DCF commissioner does have authority to turn over records in the child abuse registry to the attorney general.
“The whole point of the registry is that that information is supposed to be used to protect children … and they’re using the information in the registry not to protect children but to kick jurors out of the case,” the lawyer said. “To me, it’s just bonkers.”
And although registry records can be legally disclosed to the attorney general, the AG is not then authorized to give that information to anyone else, even a judge, the lawyer said.
Valente said the state’s lawyers provided the plaintiffs with a spreadsheet — including information from the more restricted unsubstantiated records — listing each potential juror’s name and a brief summary of their history with DCF next to it.
“To me that’s particularly crazy,” the child welfare lawyer said, “because the statute on those records doesn’t allow them to hand them over to the AG’s office, and it’s pretty clear that it would be entirely illegal to use those records in any sort of a context like this.”
“I cannot for the life of me fathom an argument that they had legitimate access to these records,” the lawyer added.
Asked about this legal analysis, Lauren Jandl, a spokesperson for the Attorney General’s Office, wrote in an email: “We disagree with your interpretation. We will not comment further until the conclusion of the trial.”
Valente said the reason the state’s lawyers didn’t just ask the jury pool about their histories with DCF was likely because the judge might not have allowed it.
“When you ask in the alternative, ‘do you have a negative view of DCF?’ a couple people raised their hands,” Valente said. “That’s a narrow amount of people you get information about, but this way, the state could access much more information about that jury pool.”
Appel, the former defender general, said lawyers probably could have had private conversations with potential jurors about their DCF histories, but it would have been more time-consuming.
Former Attorney General Bill Sorrell said he doesn’t remember that kind of “background check” being done on potential jurors while he was AG, but said it doesn’t strike him as illegal, and said he could understand the justification for it.
“I wouldn’t be surprised if it was in an attempt to protect the privacy of folks on the jury, and not ask them to answer questions about their history with DCF, either as a parent or guardian or as a child, in a public courtroom in front of the whole jury pool and anyone who walked in off the street,” Sorrell said.
Valente said the main issue, ultimately, was ensuring that the plaintiffs’ lawyers had the same access to information as the state.
“We don’t think it poisoned the jury,” Valente said. “We were just so surprised, we’d never seen this before — and our office litigates a substantial amount of jury trials. We’ve even litigated against DCF before.”
Valente said the question of whether accessing this information is legal is less important to him than the question of whether it’s right. He said the answer to the latter question is a clear “no.”
“If this is something the state does, we just think the public should know,” he said.