A state judge in Franklin County has tossed more than 350 low-level criminal cases amid a pandemic-fueled courthouse backlog that is only getting worse.

Superior Court Judge Martin Maley made the unprecedented move on Thursday by dismissing all criminal cases filed before January 1, 2021, involving six different charges: driving with a suspended license, misdemeanor drug possession, violating conditions of release, unlawful trespass, retail theft, or disorderly conduct. 

Dropping such cases, Maley concluded, is necessary at a time when the court is struggling to wade through a docket that has ballooned to around 2,400 cases,  up from an historical average of about 400. He justified the move by citing a clause in the Vermont Rules of Criminal Procedure that allows a trial judge to toss a case if dismissal "will serve the ends of justice." Some of the cases dated to 2017 and 2018.

"This court has never issued such an order, however, given the current circumstances, the court is persuaded that such action is necessary to allow the court to focus on the oldest and most serious cases on the docket, including cases involving defendant's [sic] incarcerated awaiting trial."

Maley's order is a sign of the dire circumstances facing the judiciary, defense attorneys said, noting that more action is needed.

"It is a big thing to issue an order like this," Defender General Matthew Valerio said, "but it is the kind of thing that one would expect, eventually, when the system is effectively broken."

Maley's order attributed the backlog in Franklin County to factors beyond the 18-month halt in criminal jury trials. During the same time, the judiciary has endured a rocky rollout of its new electronic case management system, known as Odyssey. Even determining the size of the backlog has proven difficult using the new software, Maley wrote.

"Odyssey presents unique challenges with obtaining those statistics, or at least, displaying them in a comprehensible fashion," he wrote.

Prosecutors and defense attorneys have battled on a case-by-case basis over which charges are dismissed. That process has "done little to alleviate the massive backlog," the judge said. Each day, more criminal cases are filed than are resolved.

In dismissing entire categories of cases, Maley essentially did what public defenders argue state's attorneys should have done throughout the pandemic. While some state's attorneys have declined low-priority cases, others have been less willing to change their charging patterns, Valerio said.

Public defender Rosie Chase said that Franklin County State's Attorney Jim Hughes has taken the latter approach, which she said puts defendants, witnesses and attorneys at unnecessary health risk.

"It's unfortunate that the prosecutor wasn't able to exercise any prosecutorial discretion following the pandemic and continued to charge every single crime possible," she said.

Hughes said he has declined more cases in recent months, though he wasn't sure whether he could provide data to demonstrate it. "I've toned down my rabid criminal justice side," he said.

Hughes said his office hadn't undertaken a review of cases that it was willing to dismiss because of limited staff, but also because of his prosecutorial stance.

Maley's order, which followed a meeting between the judge, Hughes and the public defender's office, allows the state's attorney to object to the dismissal of any of the cases. Hughes said he plans to closely examine those involving violations of conditions of release, particularly if the violation involved contacting or harassing a victim.

"I think that needs to be ... prosecuted so that we have a criminal record that this person doesn't obey court orders," he said.

The problem in Franklin County was compounded by a judicial vacancy that opened in April when Judge Howard VanBenthuysen retired. Maley filled the opening in September during regularly scheduled judicial rotations.

"I am thankful to Judge Maley for taking this step," Chase said, "but I still think so much more needs to be done."

Read the order below: