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Vermont Prisons' COVID-19 Response Under Scrutiny On Day Two Of Court Hearing

A brick building with a green awning for the department of corrections.
Elodie Reed
A bail hearing in Windham County Wednesday focused largely on the Department of Corrections' ability to respond to the COVID-19 pandemic.

The Vermont’s prison system’s ability to protect its incarcerated population from COVID-19 was under scrutiny once again on the second day of hearings in Windham County. 

The proceeding was ostensibly a bail hearing, yet testimony focused almost exclusively on the adequacy of the prisons’ pandemic protocols, and its ability to implement them. Testimony featured witnesses for the state — defense attorneys brought their witnesses the day before.

Windham County State’s Attorney Tracy Shriver questioned two Department of Corrections employees to establish that prisons’ COVID-19 protocols are up-to-date and based on recommendations from the Centers for Disease Control and Prevention, and the World Health Organization. 

Defense attorneys’ cross-examination established that implementation and enforcement of the protocol is left up to superintendents of the state’s six different facilities, rather than the DOC’s central leadership. 

"The goal is to provide as safe a system as possible for those in our custody and those on our staff." — Joshua Rutherford, Department of Corrections


“The court has inferred from the testimony that it has heard today that it is the superintendents’ obligation to ensure that the protocols developed by the department are, in fact, enforced at the particular facilities,” said Superior Judge John Treadwell, who has presided over the case. “Is it the state’s understanding?” 

Shriver agreed.

The state’s first witness of the day, Joshua Rutherford, described how he created and continually updates the prison’s COVID-19 protocol documents, integrating recommendations issued by public health officials. Rutherford is the former superintendent of Northern State and now on special assignment for the DOC as a technical specialist, following an administrative leave.

“The goal is to provide as safe a system as possible for those in our custody and those on our staff,” he said. 

Because of that, he said, the department frequently updates its protocol based on changing recommendations. 

“Masks are, as you might imagine, something we normally don’t allow,” Rutherford said, but after public health officials began recommending masks, “we pushed out very quickly some written guidelines for facilities on masks, cloth-based coverings, making clear that those were allowed, and actually eventually required, just a few days later.”

More from VPR: Defendants Ask Court To Weigh COVID-19 Vulnerability While Setting Bail

Later on, Emily Tredeau, Supervising Attorney for the Prisoner’s Rights Office at the Vermont Defender General, noted the correctional officer assigned to oversee her client’s testimony at Southern State Correctional Facility had his mask pulled down below his mouth. It was visible on the video conference screen.

During both days of testimony, attorneys for the state have objected to the way the court has handled this case. In an interview, Windham County Deputy State’s Attorney David Gartenstein explained how the courts had consolidated the cases of many defendants in multiple jurisdictions in an effort to streamline numerous bail hearings brought by incarcerated detainees citing COVID-19. 

States’ attorneys have asked the court to explain the impact of this consolidation, he said, but “a final determination by the court about just what consolidation means has not been provided.”

"Mr. Sanville is getting his day in court. ...There's no other defendant who can say that." - Emily Tredeau, Prisoners' Rights Office


“I too don’t know what the effect is going to be in other cases,” said Tredeau, who represents the lead defendant in the case, Frank Sanville. As lead defendant, she said, “Mr. Sanville is getting his day in court.” As for the other pretrial detainees whose cases have been consolidated with Sanville’s, Tredeau said, “There’s no other defendant who can say that.”

When asked by email about the impact this case might have on other defendants’ bail outcomes, Chief Superior Judge Brian Grearson said, “Until the hearing is concluded and a decision is rendered, I cannot tell you how it will impact other cases.” 

However, he said “it could be viewed as precedent… in the event there is a commonality of issues that are addressed.”  

The hearings are set to continue Monday.

Correction 2:50 p.m. 4/23/20 A previous version of this story misspelled Emily Tredeau's name. 

Emily Corwin reported investigative stories for VPR until August 2020. In 2019, Emily was part of a two-newsroom team which revealed that patterns of inadequate care at Vermont's eldercare facilities had led to indignities, injuries, and deaths. The consequent series, "Worse for Care," won a national Edward R. Murrow award for investigative reporting, and placed second for a 2019 IRE Award. Her work editing VPR's podcast JOLTED, about an averted school shooting, and reporting NHPR's podcast Supervision, about one man's transition home from prison, made her a finalist for a Livingston Award in 2019 and 2020. Emily was also a regular reporter and producer on Brave Little State, helping the podcast earn a National Edward R. Murrow Award for its work in 2020. When she's not working, she enjoys cross country skiing and biking.
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