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Proposed bill would seal court diversion cases

January 14, 2011
Thursday January 13, 2011

BENNINGTON — Legislation introduced in the Vermont Senate this week would make confidential all cases referred to the court diversion program.

The diversion program was launched in the late 1970s to keep minors from entering the court system for slight offenses. It proved successful, according to the Vermont Attorney General’s office, and was expanded to include adults in 1982.

An offender is referred to the program by the county prosecutor and meets with a community board that decides on reparations. The case is dismissed upon completion of the program, and the court seals all records related to the case. The case returns to court for prosecution if the offender does not successfully complete requirements laid out by the county diversion board.

Bennington County Sen. Dick Sears, D-Bennington, the chairman of the Senate Judiciary Committee, said the legislation stems from conversations with Bennington-based criminal defense attorney David F. Silver.

According to the bill, S.16, “the information and affidavit related to the charges shall be confidential and shall remain confidential unless the person does not successfully complete diversion.”

A client of Silver’s was recently referred to the diversion program. Clerks at the Bennington Superior Court Criminal Division released the file to a Banner reporter after Judge David Howard determined the cases are public record until the offender completes the diversion program.

Silver said Thursday that making the diversion cases confidential from the outset would preserve “pro-social things” going on in the offenders life, including employment.

“Most people who get diversion, it’s their first contact with the criminal justice system. It’s usually something that, if not relatively minor, it’s nonviolent, and it’s usually not indicative of a pattern of criminal behavior and it’s usually out of character,” he said.

It would “spare that person the negative consequences” of a case appearing in the media, he said. “If you want to give them a break it makes no sense to subject them to one of the worst parts of the criminal justice system, which is the publicity surrounding it,” he said. “We’re not talking about making these better for someone who is a habitual lawbreaker.”

Sears said he believes that once a case has been accepted into the diversion program “it has gone into a different … place in the criminal justice system” and should be confidential.

Bennington County State’s Attorney Erica Marthage said she can see “the value to both sides of the coin.

“I don’t know that I have a big concern about that. In a lot of ways it makes sense that cases referred to diversion are confidential,” she said. “The whole idea of diversion is supposed to be that if this person … clears all of these paths the charges come off their record.”

However, Marthage said she is also committed to transparency within her office. “I like the fact that people can know what my office is doing. (The bill) makes it less possible,” she said.

The legislation could have also been an amendment to other bills the Judiciary Committee will review this year dealing with the “collateral consequences of crime,” Sears said.

Contact Neal P. Goswami at

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