• Vt. high court rules prosecutor’s appointment was OK
     | October 19,2013

    MONTPELIER — The Vermont Supreme Court on Friday rejected a defense lawyer’s bid to get some cases thrown out on the grounds that the prosecutor was not properly elected.

    St. Johnsbury lawyer David Sleigh asked for the dismissal of kidnapping and domestic assault charges against George Cuomo, 43, of East Charleston, on the basis that Orleans County State’s Attorney Alan Franklin had been appointed by the governor rather than elected.

    State’s attorneys usually are elected in Vermont, but Franklin was appointed by Gov. Peter Shumlin after Shumlin appointed his predecessor, Keith Flynn, to serve as Vermont’s public safety commissioner.

    The court ruled that even if Franklin’s assumption of office was unusual, he is still the “de facto” state’s attorney — as a matter of fact. It noted there was no allegation that Franklin was appointed secretly or in bad faith.

    Shumlin appointed Franklin, who had served as chief deputy state’s attorney in Orleans County, to serve the last 10 days of the four-year term Flynn had begun in 2007, ending Jan. 31, 2011, as well as the four-year term beginning Feb. 1, 2011, to which Flynn had been elected the previous November.

    Sleigh argued in court papers, and in an interview Friday, that it was proper for Shumlin to appoint Franklin to serve out the last 10 days of Flynn’s earlier term, but not the entire new term.

    “There were all sorts of remedies,” Sleigh said Friday.

    Under Vermont law, the state attorney general has concurrent jurisdiction with all county prosecutors, meaning Orleans cases could have been handled by that office, at least temporarily.

    “And we could have had a special election, to allow the people of Orleans County to elect a state’s attorney,” he said.

    Sleigh said he did not expect to win the case, because a victory could have disrupted the smooth administration of justice in the county.

    But he said he felt it was a worthwhile point to make nonetheless. As for the Supreme Court’s legal reasoning, Sleigh said, “I think facile would be kind” as a way to describe it.

    Franklin did not immediately return a phone message Friday seeking comment.

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