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Hard Rain 

Fair Game

Published August 31, 2011 at 9:17 a.m.

Fair Game is Seven Days’ weekly political column.

Irene’s floodwaters were still ripping a path of destruction through Vermont on Monday morning when Gov. Peter Shumlin went on the national radio show “Democracy Now!” to finger the culprit.

“We understand that the flooding and the extraordinary weather patterns that we’re seeing are a result of our burning of fossil fuels,” Shumlin told host Amy Goodman. “We didn’t used to get weather patterns like this in Vermont. We didn’t get tropical storms. We didn’t get tropical flooding. Our storm patterns weren’t like Costa Rica. They were like Vermont.”

Immediately following Shumlin on the program was Vermonter and climate activist Bill McKibben, who echoed the gov’s assessment that Irene’s ferocity was a result of global climate change, a case he made again in a Burlington Free Press op-ed the next day. While climate change didn’t create the tropical storm, McKibben said, increasing amounts of moisture in the air made it far more devastating.

Shumlin has made climate-change remediation a cornerstone of his administration, convening a “climate cabinet” of top deputies to “coordinate climate change efforts” across state agencies and encourage Vermonters to decrease their own greenhouse gas emissions.

“I find it extraordinary that so many political leaders won’t actually talk about the relationship between climate change, fossil fuels and our continuing irrational exuberance about burning fossil fuels in light of storm patterns that we’ve been experiencing,” Shumlin said on “Democracy Now!”

At an unrelated but now seemingly prescient press conference two weeks ago, Shumlin told Vermont reporters that he believes extreme weather, also the source of this spring’s destructive floods, is the new normal.

Listening to Shumlin and McKibben, you’d get the impression the case was closed. We’re finally seeing the cost of driving SUVs, burning carbon for power and poisoning our atmosphere, and her name is Irene. This is what global climate change looks like in Vermont. Put on your raincoat and hang on for the ride.

To listen to Vermont’s official state climatologist, on the other hand, you’d come away with a far more nuanced impression of what made Irene so damaging. When she’s not working in that capacity, Lesley-Ann Dupigny-Giroux is an associate professor in the University of Vermont’s Department of Geography. She says multiple factors made Irene into a monster.

Topography played a huge role, she says, as the storm parked itself between two mountain ranges — the Adirondacks and Green Mountains — and dumped rain incessantly for several hours. Plus, earlier rainstorms, on August 15 and 16, had brought some Vermont rivers to near-flood stage. To be sure, Dupigny-Giroux says the storm was massive to begin with, fueled by a lot of moisture in the air, and it stayed strong long after most hurricanes would have broken apart.

But is climate change the cause?

“When you say ‘climate change,’ we need to factor in both the human component and how the natural component could also be accelerating the changing over time,” Dupigny-Giroux explains. “Like the severe winter we had this last winter. The scientists at the National Climactic Data Center attributed that to natural variability. It took six months to go through the entire pattern.

“For a storm that took place yesterday,” she adds, “We would need a little more time to kind of tease it out and put it in full perspective.”

A politically inconvenient truth?

Guilty Until Proven Innocent?

When 12-year-old Brooke Bennett of Braintree was raped and murdered, allegedly by a convicted sex offender, in 2008, the legislature responded by passing a tougher sex-offender law. Tucked into that legislation is a provision that requires anyone charged with a felony, or certain sex-related misdemeanors, to give up a DNA sample. Previously, only those convicted of felonies were subject to a state-sanctioned cheek swab.

Backers said that a bigger DNA databank would not only help catch guilty suspects but would also help clear innocent ones. At the time, many warned the law could be unconstitutional, noting that federal courts have split over the legality of mandatory DNA collection. Even supporters admitted that particular provision, once it took effect on July 1, was likely to end up being appealed to the Vermont Supreme Court.

As if on cue, a Windsor County public defender has filed a challenge to the law’s constitutionality. Elizabeth Kruska of the firm Griffin Marsicovetere & Wilkes in White River Junction is bringing the challenge on behalf of a client ordered to submit his DNA after being charged with burglary. Kruska says her client, who has no criminal history, is alleged to have entered “a couple of houses and taken some things.” She’s asked the judge to halt the DNA collection while the court reviews the constitutionality of the law.

Kruska says taking DNA from suspects before they’re convicted turns the presumption of innocence on its head. Although about half the states do it, Kruska sees the practice as “frightening.”

“It’s sort of scary to think that someone could be in the wrong place at the wrong time, get charged with a felony and all of a sudden have to submit their DNA,” Kruska says.

Unless the subject consents, DNA collection is considered “search and seizure,” meaning that under the Fourth Amendment, the government needs a warrant based on probable cause to obtain it. Taking DNA from convicted felons is a different story; courts have ruled felons have diminished privacy rights and a warrant is not required. Kruska’s case could be the one that tests how much privacy accused felons get under Vermont law.

Meanwhile, police and prosecutors aren’t waiting for the verdict. The Vermont Forensics Laboratory has already received and processed numerous DNA samples collected from individuals arraigned on felonies, according to senior forensic chemist Peg Schwartz. Two years ago, when the law passed, lab personnel said they couldn’t handle the huge increase in DNA samples it would produce. They successfully delayed the collection part until July 2011. Now, with a new $12 million lab on line, Schwartz says DNA samples of the accused are processed and uploaded to the FBI’s Combined DNA Index System within a week. There, genetic profiles are accessible to match-seeking law-enforcement agencies across the country.

To be sure, the law has built-in safeguards. If a person is found innocent, or he pleads guilty to a nonqualifying offense, the DNA sample is pulled from the databank and expunged. Any profiles would be deleted. Schwartz adds that only five lab employees have access to the database, giving her total confidence in the system’s integrity.

Allen Gilbert of the Vermont ACLU isn’t reassured. Gilbert says the ACLU doesn’t oppose DNA collection — as long as police have a warrant before they swab someone.

“Our justice system is built on the idea that you’re innocent until proven guilty — not the other way around,” Gilbert says.

Vermont law already authorizes the cops to collect breath and blood samples from people suspected of DUI before conviction. Is taking DNA from criminal suspects — many of whom will ultimately be convicted — really any more invasive than that?

Not according to state Sen. Dick Sears (D-Bennington).

“I don’t believe it’s an invasion of privacy,” says Sears, who quarterbacked the DNA-collection law as chairman of the Senate Judiciary Committee. “That’s a disagreement I have with the ACLU and others.”

DNA has helped police solve some very cold cases, including one of Vermont’s most notorious and heinous crimes, the 1991 rape and murder of Patty Scoville near Stowe.

Ironically, though, it was cyber forensics — rather than DNA — that was pivotal in the arrest of Michael Jacques for the murder of Brooke Bennett.

The problem with making a finding of probable cause — rather than an arrest warrant — the trigger for collecting a criminal suspect’s DNA might be in the very definition of “probable.” Under Vermont law, the term doesn’t mean it’s “more likely than not” that a person committed the crime. Rather, a 1991 Vermont Supreme Court ruling established the bar thus: “Probable cause is something less than more probable than not.”

Is it too much to ask prosecutors who want our genetic code to get a warrant before sticking Q-tips down our throats?

Media Notes

John Odum has made a name for himself by mocking Republicans and cheerleading for Democrats on his popular politics blog Green Mountain Daily. He’s also worked as a paid political consultant, most recently for PowerThru Consulting, advocating for myriad progressive causes.

But now he’s donning a new title: news editor for Montpelier’s twice-monthly newspaper the Bridge. And Odum says that in his new role, he’ll check his opinions at the door and practice just-the-facts-ma’am journalism.

“I’m going to be approaching the news-editing process as being facts driven, so there just simply won’t be room for opinion,” Odum tells Fair Game. “Which is not to say I might not have some involvement in editorial page writing and opinion writing.”

Ah, now that’s more like it.

Odum says his plan for the Bridge is to “journalism it up a little bit.” That means ramping up statehouse reporting. It also means covering local boards and commissions that many Vermonters consider “very dry,” but which Odum says are “more relevant to them than they think.”

His first piece for the Bridge — a front-page article on legislative redistricting published on August 18 — might be the poster child for dry-but-important journalism. It’s a thoroughly reported piece on a complicated topic, and Odum even wrangled a quote from one of his frequent punching bags, former Vermont Republican Party chairman Rob Roper. Odum once called Roper a “wingnut” on GMD.

Will other interview subjects prove as willing? Odum admits his opinions could present a credibility problem as he ventures into the world of professional news reporting.

“That’s the problem with me,” he says. “Bringing me on isn’t like hiring Katie Couric to run the ‘[CBS Evening] News.’ It’s more like bringing on George Stephanopoulos to do ‘This Week.’ You come with a real particularized, partisan, ideological background. Can you still be the right person for the job? The answer is yes.”

Only time will tell if Odum can straddle the news-opinion divide in a way that makes the Bridge a more relevant — and trusted — news source for Vermonters. He’s spilled plenty of cyber-ink over the years on GMD criticizing the performance of Vermont’s “legacy” media outlets. Now it’s his turn to show us how it’s done.

Shay Totten is on vacation. He’ll return next week. Got a comment? Contact Andy Bromage at [email protected].

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About The Author

Andy Bromage

Andy Bromage

Andy Bromage was a Seven Days staff writer from 2009-2012, and the news editor from 2012-2013.


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