Law: Putting Laymen on the Bench

Vermont supports a controversial system of citizen judges

Violent crime is relatively rare in bucolic, lightly populated Vermont. So when an assailant killed Chiropractor Peter Sophos with a rifle blast to the face last year in Barre, its 9,800 citizens were shocked. Sophos' 18-year-old neighbor, Gordon Hunt, was arrested for the murder the same day. Police said that Hunt told them, "I always wanted to shoot someone."

Despite the angry mood of the community, the prosecutor and defense attorney proposed a plea bargain to Judge James Morse, which he was ready to accept. The deal: if Hunt would plead guilty to second-degree murder, his sentence would be ten years to life, with the possibility of parole after six years and eight months.

But Jane Wheel, a former teacher, and Charles Delaney, a restaurant owner, overruled Morse and demanded that Hunt be tried for first-degree murder, a ruling now under appeal. Wheel and Delaney were exercising this legal authority in their roles as "assistant judges." Also known as side judges, these officials are ordinary citizens with no legal training who are elected to sit beside the state's law-trained superior court judges and share much of their judicial power. There are 28 of these citizen judges in Vermont, two in each of the state's 14 counties. They sit on both jury and nonjury cases and are elected for four-year terms.

Vermont is not the only state with nonlawyer judges. A 1979 study by the Institute of Judicial Administration and the National Center for State Courts found that there were some 14,000 such judges in 44 states. In every other state these lay judges are functionaries assigned to lowlevel courts, where dockets consist mostly of traffic offenses, minor civil suits and petty criminal offenses. Only in Vermont do lay judges exercise substantial authority in important cases.

The assistant judges, established by Vermont's 18th century constitution, are a remnant of the hostility toward lawyers that many of the original colonists brought with them from England. That mistrust persists to this day. Vermonters are fond of pointing out to strangers that in the Green Mountain State's peculiar twang, the word lawyer comes out sounding like "liar."

Over the past century, the organized bar in the U.S. has waged a relentless and effective campaign against lay judges. In Vermont, which is still governed by a part-time legislature where lawyers are in a minority, most efforts to curtail the assistant judges' power through legislation have failed.

Still, the legislature has not permitted side judges to sit in some kinds of civil cases, such as those involving taxes and the sale of real estate. In 1976, the Vermont Supreme Court ruled that it was a violation of defendants' right to due process for lay judges to rule on matters of law in criminal cases. Side judges, however, can still rule on questions of fact and sentencing (in an appeal to the Vermont Supreme Court, Gordon Hunt's attorney is currently challenging the side judges' right to interfere with plea bargaining).