June 17 had been a regular workday for certified arborist Michael Roche before he was allegedly assaulted in his shop on Taylor Lane in Waterbury Center.

Official details of the incident are brief. According to police, shortly after 5 p.m., William F. Hayes, 39, of Morrisville entered Roche’s shop, Vermont Arborists, and allegedly assaulted the 60-year-old man.

Hayes was scheduled for arraignment in Washington County criminal court on July 25 on a misdemeanor charge of simple assault.

Typically, after a defendant is arraigned in court, the sworn affidavit from the arresting officer is made available, providing additional details to the public.

However, in this case, Hayes was referred to diversion, his affidavit was not disclosed, and the details of the incident remain a secret from the public.

“I think his actions were incredibly offensive,” Roche said. “He acts more like he’s living in an episode of ‘The Sopranos’, as opposed to life in a decent small town, and he made life in a decent small town a bit worse.”

Hayes declined to be interviewed for this story.

It is unclear what led to the dispute between the two men, one of whom — Roche — is the president of Vermont Arborists, while Hayes is the owner of Aardvark Excavating, which also performs tree services.

“This is not a case of being rivals,” Roche said. “This is a case of him thinking he can scare people through violence and intimidation, and I won’t be scared or intimidated. I’m 60 and he’s 39. This like me picking a fight with an 81-year-old. Great job, tough guy.”

What is diversion?

Diversion is a process in which some criminal allegations are referred to a secret process in which — in theory — the offender, the victim and a panel of volunteers work together to find a way for the offender to make amends for his or her crime.

In Hayes’ case, he was referred to the Washington County Diversion Program, which was founded in 1976 and was the first of its kind in the state. Diversion programs were rolled out out statewide in 1979.

“These programs have responded creatively to the needs of victims and offenders of all ages for over four decades,” said T.J. Donovan, Vermont’s attorney general, whose office funds and oversees court diversion in all 14 counties. “Court diversion takes the crisis of involvement with the criminal justice system and creates an opportunity for people to take responsibility for their actions and build connections to their community.”

Participation in diversion is voluntary for a defendant, but one requirement is non-negotiable.

“They need to take responsibility for their actions,” said Catherine Kalkstein, executive director of the Washington County Diversion Program. “They need to be willing to say that they did this, and they need to be willing to make amends.”

Making amends can come in many forms. If the crime is theft, the offender must be willing to make restitution. If the crime is one of violence, the assailant might write a letter of apology.

Who is eligible for diversion?

Anyone charged with a misdemeanor offense is eligible to participate in diversion, with a few exceptions. The offender cannot currently be on parole, and a handful of misdemeanor offenses don’t qualify, such as driving under the influence, domestic assault or violating an abuse prevention order.

“Simple assault, disorderly conduct, these cases are frequently referred to diversion,” said Rory Thibault, the state’s attorney for Washington County.

During the 12-month period ending in June 2018, Thibault’s office referred 28 percent of misdemeanor cases to diversion. During the year ending in June 2019, the Washington County Diversion Program accepted 288 cases. An additional 104 people were accepted in the Tamarack Program; it is a similar to diversion and also includes alcohol and mental health counseling.

In 2017, Gov. Phil Scott signed into law Act 61, which expanded the slate of crimes eligible for diversion. The bill was a product of the Senate Judiciary Committee.

“The criminal justice system has not been the greatest way to respond to a crime, and we found some great success with diversion over the years, so expanding it was a natural thing,” said Sen. Dick Sears, chair of the Senate Judiciary Committee.

“This year, we actually added about $460,000 to the budget for diversion because it is so successful and we needed more people to run diversion,” Sears said. “If people can, through restorative justice and diversion programs, give back to the community, and we can keep people out of the probation and parole program, that’s a good thing.”

Victim participation

Kalkstein said that, in some ways, the diversion process requires more from a defendant than if he or she went through the courts.

“We’re asking the offender to play a much more active role,” she said. “They’re not just standing in court. They have to talk about what they did.”

The process also asks a lot from the victim of a crime. Diversion allows a victim to actually sit down with the offender and explain the impact of the crime.

“Our stance is that you, as a victim, have more opportunity to be a participant in diversion than you do when the case goes through court,” she said. “It can be really powerful to have all of the parties in the room, because you have to look that person in the eye and say, ‘I did this to you, and this is why.’ It can be a very healing process for the victim when they meet the person face to face.”

Kalkstein acknowledged that getting a victim in the room can be what she called a “difficult sell.”

“We want to respect victims’ choices. Maybe they don’t want to ever see this person again. Maybe it’s not convenient,” she said.

And sometimes, a victim is unhappy that an offender will be able to go through a process that — if completed successfully — will leave the offender with no criminal record.

“From my office’s standpoint, increased referrals to diversion is a great milestone that has not been met with universal enthusiasm. Not everybody is happy with the outcome,” Thibault said. “We do give great credit to the input of the victim, but in some cases, the victim doesn’t get the outcome that they want. At the end of the day, the primary goal is to reduce risk to the community.”

Roche said he plans to sit down and talk with Hayes as part of the diversion process.

“A person like him needs to be held accountable for his violent behavior. If the state of Vermont feels that diversion is the best way to do that, I will defer to the state to do that,” Roche said. “I don’t think he should go to jail, but I do think he should be held accountable.

“I felt like I want to confront him because I want him to know he can try and scare people, but it’s not going to work,” Roche continued. “I want him to own his actions, but I’m not sure he will.”

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