By Mark Houle ’23
I’m within glorious eyeshot of the Adirondacks across Lake Champlain here in Vermont’s Champlain Valley. My corner office looks out upon Martha’s Community Kitchen where needy people are served free hot lunches seven days a week. This summer, thanks to the Kaplan & Reynolds Fellowship, I am interning at the Franklin County Public Defender’s Office in St. Albans, Vermont. Franklin County is tiny which affords me a lot of opportunity. Although Franklin has a very small population, in early July we were inundated with long lines of people from across the country seeking passports. Apparently, the office a block away from me was the only one in the continental United States issuing on-the-spot passports. They had to end that practice due to overwhelming numbers as reported by the Associated Press.
It has been an abnormal year, as that is undoubtedly true for every one of the summer public interest fellows from the University at Buffalo School of Law. Being in person at this internship has been really good for my development and psyche after our year of Zoom. Not only have I been entirely in-person throughout the summer, but I have also been able to spend time in the courtroom, analyze crime scenes, and visit clients in prison. The opportunities afforded me have been remarkable.
My summer has been one filled with lots of reading, researching, and writing. For example, I worked on a Frank’s motion (a type of motion named for a United States Supreme Court case that ruled a warrant obtained with an affidavit containing information known by police not to be true was invalid) for questionably obtained evidence. Also, I helped draft a motion to compel the state’s attorney to grant inspection and measurement of evidence during the discovery phase. I completed various aspects of analysis and reviewing evidence in an alleged attempted murder investigation. I assisted in writing revised prosecutor rules seeking to undo inherent bias.
The biggest project that has consumed my summer is working on pretextual stops. Federally, the Supreme Court has handcuffed the Fourth Amendment with its decision in Whren. Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769 (1996). For all intents and purposes, this ruling provides a carte blanche to stop any vehicle for any reason at any time. Then authorities can extend the stop into investigatory ones that don’t resemble in any way protection from unreasonable search and seizure. The Vermont Constitution predates the U.S. Constitution by a dozen years and affords greater liberty protections. I have been working on briefs that leverage Vermont’s Article 11 search and seizure protections instead of relying on the Fourth Amendment.
Recently in Massachusetts, some headway was gained in Long by applying Equal Protection in pretextual stops with suspect racial motivation. Commonwealth v. Long, 485 Mass. 711, 152 N.E.3d 725 (2020). Vermont Public Defenders’ appellant division has been working to follow this lead. In my writing and research, I have employed Vermont’s Article 7 Common Benefits Clause. Unlike the Federal use of suspect classes in the Equal Protection Clause, Vermont’s Common Benefits Clause calls for equality for all without advantage to any particular group or person. This was the basis for the Baker decision requiring the state legislature to enact equality in marriage for same sex couples. Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999).
My research seeks to show that lower-income people with older vehicles are ripe for pretextual stops for minor equipment failure, quite disparate from the results of moving violations or illegal activity. Many police stations in Vermont are located in low-income neighborhoods, compounding this inequity. The premise is that stopping and investigating people with legally inspected cars for minor equipment failure is humiliating, embarrassing, and treats people like second class citizens. The annual inspection process is already in place to remedy this issue. Therefore, pretextual stops only serve as an ineffectual and unequal violation of the Common Benefits Clause. I hope this work can be used to benefit minorities, lower-income Vermonters, and youths (all of whom are especially vulnerable to pretextual stops). My bosses and the Appellant division are enthusiastic about my concepts and work. Now to wait and see how the judges receive it.
I would like to wholeheartedly thank Kaplan & Reynolds for allowing me the opportunity to be part of this fellowship. You have enabled me to experience firsthand precisely what a budding advocate needs. The Franklin County Public Defender is a shoestring operation. Working here has been mutually beneficial for overtaxed public defenders while at the same time greatly enhancing my educational development. I would also like to thank the Summer Public Interest Funding & Fellowship Program and everyone who helped administer the program enabling my summer work. Six more weeks, and I will cross that majestic Lake Champlain and those magnificent Adirondacks on my drive back to Buffalo. See you all soon.
Name: Mark Houle, ‘23
Name of Fellowship: Kaplan & Reynolds Summer Fellowship Award
Location: St. Albans, Vermont
One important lesson I have learned from this fellowship: “Being in person at this internship has been really good for my development and psyche after our year of Zoom. Not only have I been entirely in-person throughout the summer, but I have also been able to spend time in the courtroom, analyze crime scenes, and visit clients in prison. The opportunities afforded me have been remarkable. ”