In a move that some Black Vermonters are calling a blow to the state’s racial equity movement, the Vermont Senate voted Tuesday to confirm a judge whose spouse was fired from the Vermont State Police for a pattern of unlawful searches that often targeted motorists of color.
Gov. Phil Scott appointed former Orleans County State’s Attorney Jennifer Barrett as a Vermont Superior Court judge last August, but the Senate hearings leading up to her confirmation vote Tuesday were unusually contentious.
That’s because Barrett is married to former state trooper Lewis Hatch, who came under fire from his own superiors at VSP for placing his “personal pursuit of drug detection above all else, including your duty to follow orders and your duty to properly and thoroughly document objective legal justification for your actions.”
That quote appeared in a 2015 warning letter to Hatch from then-Commissioner of Public Safety Keith Flynn, who later fired Hatch for repeated disregard of motorists’ constitutional protections against illegal search and seizure.
“I believe that if Barrett was to be confirmed, much of the work done in recent years enacted to curtail systemic racial bias here would be sent back a decade ideologically.”Greg Zullo, plaintiff in landmark Vermont Supreme Court case
Racial justice leaders across the state say Barrett played a key role in appealing her then-boyfriend’s termination from the state’s largest police force. And in letters sent to Vermont senators in the days preceding Tuesday’s vote, they urged lawmakers to reject her confirmation.
“If Jennifer Barrett is, therefore, confirmed as a Superior Court judge without consideration of her glaring faults, then the message will be conveyed to all Black Vermonters from the highest branches of our state government that Black lives don’t matter,” Arnold Isidore Thomas, Shannon MacVean-Brown, Walter B.A. Brownridge, Mark Hughes and Malcolm Greene wrote Monday evening.
Signatories to that letter represent prominent racial equity organizations in Vermont. And they aren’t the only ones raising concerns about Barrett’s confirmation.
Greg Zullo was 21 years old when Hatch pulled him over in Wallingford in March of 2014 for having snow obscuring the registration sticker on his license plate. Hatch had the car towed when Zullo refused to consent to a search of his vehicle.
Zullo would later win a landmark Vermont Supreme Court decision in which justices found the state liable for Hatch’s violation of Zullo's Article 11 constitutional rights. And in a letter to senators Monday, Zullo, a Black man who grew up in Rutland, registered his concerns with Barrett’s nomination to the bench.
“The wife of this disgraced officer, someone with large conflicts of interest that so obviously cross personal and professional boundaries, is attempting to gain a seat on a judicial panel that would have her preside over the futures and lives of people similar to myself who have been punished for exercising our so-called unalienable rights,” Zullo said. “I believe that if Barrett was to be confirmed, much of the work done in recent years enacted to curtail systemic racial bias here would be sent back a decade ideologically.”
The Senate has also fielded concerns from at least four defense attorneys who say Barrett was an “overzealous” prosecutor whose tough-on-crime approach landed Orleans County with one of the highest per-capita criminal caseloads in the state.
“As it relates to my husband, I think that … it would be unjust to hold me accountable for the actions of somebody else."Judge Jennifer Barrett
In hearings earlier this month in the Senate Judiciary Committee, Barrett defended the role she played in helping Hatch appeal his termination in front of the Vermont Labor Relations Board.
“I love my husband. I support my husband. He’s a great father and he has always stood by me, and I stood by him through his process,” Barrett said. “I believe that he deserved a fair process through the Labor Board … He deserved a fair trial.”
Barrett also said her husband’s conduct as a police officer a decade ago has no bearing on her ability to perform the duties of a judge.
“As it relates to my husband, I think that … it would be unjust to hold me accountable for the actions of somebody else,” Barrett said. “And those actions don’t define him, and they certainly don’t define me now.”
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David Sleigh, a veteran criminal defense attorney and respected member of the Vermont bar, called Barrett an “enormously trustworthy” prosecutor who’s demonstrated an unyielding commitment to access to justice.
“The … thing that has really struck me as disturbing is comments that somehow Judge Barrett’s soul is deficient in some way, that she’s a racist because her husband over a decade ago had some disciplinary issues,” Sleigh told lawmakers. “Let me tell you straight up — if my wife was accused with murder, I would do everything in my power to see that she had the best defense possible. That would not make me pro-murder, right? So it’s inappropriate in any situation to say that because someone’s spouse has done something untoward, that the other spouse is personally responsible for the other’s action.”
Some Vermonters of color have also spoken in support of Barrett. Farzana Leyva, an immigrant from South Africa who succeeded Barrett as Orleans County State’s Attorney, told lawmakers that her former boss went to bat for her when a defense attorney mocked her accent in court.
“And she addressed the issue head on,” Leyva said.
When Leyva’s son became the target of racial harassment in school, Leyva said Barrett was the first person she called.
“And I said, ‘I don’t know what to do right now. I need out. I need to leave, I need to leave the state of Vermont … this is too much for me and my family,” she said. “And one of the things [Barrett] said to me and will live with me forever is, ‘You need to stand up, and you need to fight, and you need to make sure that you pave the way for other minorities, and are able to do things that they would not be able to do.’”
Leyva said Barrett spent the ensuing days and weeks helping devise and execute a strategy to address the racism she and her family experienced. Leyva said Barrett has also worked in recent years to make the Orleans County courthouse one of the most diverse in the state.
“Black Vermonters do feel really unheard in the decision that we’re about to make, and that continues to concern me greatly."Chittenden County Sen. Kesha Ram Hinsdale
Mia Schultz, president of the Rutland Area NAACP, said in a letter to lawmakers Saturday that Leyva’s input is “important.”
She also said it’s important to note that Leyva appears not to “have had direct experience in the ways the Black Americans have been harmed within the criminal justice system in particular.”
“The potential for bias and conflict of interest in cases involving a judge whose spouse has been censured for discriminatory behavior is significant, particularly when the judge has defended those actions,” Schultz wrote. “It may lead to concerns about whether the judge is able to be impartial and fair when hearing cases involving racial discrimination. We are committed to ensuring bias and discrimination do not exist anywhere in our state; we believe this confirmation compromises that undertaking.”
Some Senate lawmakers said the eleventh-hour surge of correspondence from Black leaders expressing concerns about Barrett made Tuesday’s vote one of the more difficult ones they’ve had to cast.
“I’ve been in this building for 25 years now, and I think this is the first time that I’m not sure I can vote,” Washington County Sen. Ann Cummings said Tuesday.
Cummings said she “lost sleep” as a result of reading concerns from Black Vermonters opposing Barrett’s confirmation. But she said she hadn’t had a chance to hear directly from Barrett about their objections.
“And I don’t feel I have a right to condemn someone without her having had a chance to defend herself, and that makes me uncomfortable,” Cummings said.
Cummings was one of 26 Senate lawmakers who voted to support Barrett’s confirmation Tuesday. Four senators voted no.
Chittenden County Sen. Kesha Ram Hinsdale, who was among the no votes, said the episode exposes shortcomings in the judicial nominating and confirmation processes. And she said lawmakers should work harder in the future to include the voices of more Vermonters.
“Black Vermonters do feel really unheard in the decision that we’re about to make, and that continues to concern me greatly,” Ram Hinsdale said. “Some didn’t know the timing of the process, they didn’t know this was being called to question. Some were afraid, some feared retaliation, some were just frankly exhausted and it took an extra push to make them feel like their voice might matter.”
Gov. Phil Scott stood by Barrett throughout the confirmation process, and said Tuesday that "she has demonstrated remarkable poise throughout this rigorous process."
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