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Sunday, December 28, 2008

Attorney William Nelson Wins Two Cases That Set Legal Precedents

Lawyer wins legal lottery with two cases


William Nelson has had a good year.

The Middlebury lawyer gained reversals of convictions for two clients in landmark cases he brought before the Vermont Supreme Court this spring. The first was the case of Michael Brillon of Bennington, who was declared a habitual offender when his conviction of felony domestic assault for allegedly hitting a woman was added to his lengthy criminal record. Nelson succeeded in overturning the conviction on the grounds that the case took too long, and so violated Brillon's right to a speedy trial.

The second was the case of Stephen Bryant of Goshen who was convicted of drug charges after a low-flying police helicopter spotted marijuana in his yard. The Vermont Supreme Court threw out Bryant's conviction and in a majority opinion said the flyover constituted an unlawful search since the police conducted the probe without a warrant.

"Brillon and Bryant coming together was completely circumstantial," he said. "It doesn't mean anything. The two cases couldn't be more different."

The Supreme Court's decisions, however, were similar in this respect: neither hinged on the guilt or innocence of the defendant.

"Criminal procedural rules … have to assure the fairness of the process," Nelson said .(emphasis added - editor). "If we had a system that didn't have that function, didn't care about fairness, we'd be in deep trouble."

Nelson pointed to Guantanamo Bay as an example what can happen to a legal system that cares only about guilt and innocence.

"A confession that comes out of waterboarding or that comes out of brutality may very well be true," he said. "There may be ways of determining if it's true, seeing if it jibes with other facts. Whether it's true or not, it offends our sense of decency as a society to use it as evidence."

Nelson draws the comparison to make a point. He says that Brillon and Bryant, too, were not treated equitably under the law.

"They were treated unfairly and the court did the right thing to vindicate their rights to decent treatment," he said.

A legal leader

Deputy Defender General Anna Saxman, a longtime colleague, said many attorneys in her office use Nelson as a resource. She said Nelson knows the law well enough to make the sort of creative challenges to existing paradigms that can result in new legal precedents.

"I can't say enough good about Bill," she said. "He's been a sort of intellectual and creative leader in criminal defense for more than 20 years. He's incredibly prolific, hardworking, brilliant."

Nelson has gained similar, if somewhat more muted, respect from the other side of the aisle. David Tartter, the criminal appellate director for the Vermont Attorney General's Office who has stood opposite Nelson on about 20 cases, said his legal adversary is tenacious and well prepared.

"He's a very sharp guy, very strongly committed," Tartter said. "I enjoy going up against him. He's collegial. He's a zealot advocate for his client. It's an intellectual challenge."

Nelson, 64, sounded slightly embarrassed when he was asked for an interview. The 1969 Columbia Law School graduate has practiced criminal and civil rights law in Middlebury since 1975.

Nelson often gives talks before the Vermont Bar Association and is author of "Vermont Criminal Practice," a 42-chapter manual published in 1993 and revised in 1996 by Butterworth Legal Publishers. It's now out of print but available on the Defender General's Web site.

"I started practicing in New York City," he said. "I moved to Boston, practiced there for a couple years and moved here. My wife got her job at the college (she teaches sociology and women's studies) and we figured it was easier for me to get a job anywhere. Academic jobs are hard to find."

The Legal Aid Society of New York gave Nelson his first job as a lawyer. He started in their appeals division, moving on to a prisoners' rights unit started in the early 1970s.

"They were both dynamic and interesting shops. The work itself has a lot of excitement to it. It's like a high-stakes game."

Race and class were closely tied in New York, Nelson said, where the defendants were black and Hispanic, and the lawyers were white.

"New York is, I think, the most racially segregated city in the country," he said.(emphasis added - editor) "In Boston, race and class aren't so identified with each other. There, and here as well, it's obvious to anyone who goes into a busy criminal court that the people in trouble don't have money and the people in control do — at least in the sense they're solidly middle class."

In Vermont, he said, race isn't a big factor. As Nelson puts it, "The divide is less obvious because it isn't colored. You often find the defendant and the cop who arrested him went to the same school and live in the same neighborhood."

There are other small-town advantages, he said such as the accessibility of other people from other offices he deals with. Nelson has had his own shingle out for only five or six years. For most of his time in Vermont, he worked in the appeals division at the Office of the Defender General. He still mainly handles appeals for the Defender General, but also has some private clients.

"There aren't many criminal defendants in Vermont who can afford a private attorney unless they're charged with DUI," he said.

The Bryant case

Nelson said he has very different takes on each of his recent big wins.

"I think Bryant was almost a foregone conclusion," he said. "It seems strange to say because it was the first."

Nelson said the court had heard aerial surveillance cases before, but had not proffered a decision. The groundwork for the Bryant decision had been laid in cases going back to the 1980s, and Nelson said he could not have hoped for a more fitting case to build on that foundation. A number of witnesses in Goshen reported the helicopter flying at treetop level, he said, and each had credibility in judging distances.

"One of them was familiar with Air National Guard helicopters," he said. "One was a carpenter and considered himself an expert in judging distances and the judge believed them, the trial judge. The Supreme Court isn't able to make its own credibility judgments about witnesses who testify in open court. The state was stuck with that finding."

Without the altitude element, Nelson said, the case would not have been nearly so cut-and-dried. "At 500 feet, a helicopter isn't going to be kicking up dust or making a thumping sound or blowing spray paint around in the wind," he said. "I think the fact it was so low was critical. What may not be critical is that it was illegally low."

There was testimony from the suppression hearing about Air National Guard regulations — regulations Nelson had never seen. On the Internet, he found regulations on cooperative federal/state drug programs, but nothing special about altitude limits.

There was, however, a reference to something called "Air National Guard Guidance" that said it had to be followed in all circumstances.

"'Guidance' was not on the Internet," he said. "I started making phone calls and wound up at National Guard headquarters in Alexandria, Va. They hadn't really heard of it either until I got to the librarian, who gave me about 20 telephone numbers."

He started making phone calls, often finding himself talking to active-duty personnel uninterested in answering questions from lawyers. A week later, a woman called and politely informed him she found what he was looking for and would e-mail it to him. It was a full set of regulations about what is legal and illegal in a helicopter, including altitude.

"It had just what I was looking for — a statement that you don't go below 500 feet," he said. "The legality of the altitude is important under federal law. It sure helped under the state constitution."

The Brillon case

The Brillon case, however, was a longer-shot. The delays that Nelson argued violated Brillon's right to a speedy trial were caused by the defense, though Nelson blamed them not on Brillon but on poor funding of the Defender General's Office.

"The court had not overturned a case on speedy trial grounds for 30 years," Nelson said. "That was not for want of requests to do so. There's a slew of cases raising speedy trial issues and the court had never found a case it had not found speedy enough."

Compounding the situation, Nelson said, was the fact that the defense-caused delays usually exclude a case from consideration on speedy trial grounds.

"I thought the argument had to be made because it was right," he said. "This is a guy who was in jail three years before he was tried and sincerely wanted to be tried, despite what the dissent infers and whose lawyers, for the most part, wanted nothing to do with the case."

Even more egregious, Nelson said, was the period of several months when Brillon had no lawyer.

"He was in custody, charged with a life-imprisonment crime, with no lawyer at all," he said. "Whether or not it was going to win, it had to be argued."

Nelson said it would be easy, but incorrect, to describe Brillon as a stereotypical figure in criminal law known as the jailhouse lawyer – a client who thinks he knows the law and will try to get his attorney to make ethically questionable moves, such as raising an absurd defense.

"He's largely fictional, but he has all the characteristics the professionals in the criminal law business hate," he said. "He's uneducated, but he has a smattering of legalese at his command. He's manipulative in a way which the health professionals call an anti-social personality.

"He has nothing to lose, so he'll try anything because he knows he's going down," Nelson said. "There really are such people, but I think the image is much more significant and influential than the reality. The dissent sees Brillon as this stereotype. The record doesn't bear it out. It's a class thing, largely. … It's unpleasant on both ends."

Nelson said he might have five active cases at one time, mostly labor-intensive cases. Brillon and Bryant were not his first trips to the Vermont Supreme Court.

"Some of the cases I've lost were significant also," Nelson said. "Among the ones I've won, those would rank right up there."

Among the important losses, Nelson listed a case he brought in federal court involving client who took the ferry from Grand Isle to Plattsburgh. After 9/11, he said, police instituted a search program on the ferry in which they popped trunks and even looked inside briefcases or pocketbooks of foot passengers. Nelson challenged it as an illegal search.

"I argued in the 2nd Circuit, which is the courthouse where you can see where the World Trade Center used to be, and lost hands-down," he said.

Contact Gordon Dritschilo at

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