In 1988, nearly a year before the fall of the Berlin Wall, Leonard Forte was convicted in Vermont of repeatedly raping and molesting his daughter’s twelve-year-old friend. Ten months later, the trial judge ordered a retrial on the basis the female prosecutor was “overly emotional” in her conduct of the case. Thirty years later, Forte was living in Florida, having never faced a new trial. This sorry state came forcefully to the public’s attention in a cover story in USA Today on November 21, 2019.
This is a sharp reminder of how delay can defeat the most basic sense of justice. Just as importantly this case demonstrates how suspicions of systemic flaws naturally arise when there is no good reason to the obvious questions: How could this be allowed to happen? Who is responsible?
There are often multiple causes involved in the cases of extreme delay. The saga of Leonard Forte began unremarkably: the initial investigation and trial occurred in a reasonable time – the investigation began in early 1987 over events that took place in February of that year, and Forte was found guilty in December of the following year. Post-trial motions kicked off a pattern of delay that has continued for over thirty years. The first delay was modest: a post-trial motion for a mistrial was heard six months after the guilty verdict in June of 1989; and the motion was granted in October of the same year. Lengthier delays began with the seven years (!) it took to conclude the prosecution’s appeals from the mistrial ruling. Prosecutors finally decided to retry the case in 1996, but Forte, by then 55, claimed to be on a heart transplant list and likely to die if he did not receive a new heart. Medical records apparently backed up his story. The prosecution agreed not to proceed until his health improved, and Forte was ordered to provide medical updates every six months.
As of 2019, twenty-three years later, ferreted out by the industrious USA Today reporters, he had moved to Florida, bought an oceanfront house, and had owned a series of pleasure boats. He had flown to New York despite claiming to the court he was too sick to fly, regularly took vacations in his RV despite claiming to be too ill to travel for trial and was photographed walking about his property without oxygen after telling the court he was “on oxygen 24/7”. Two years after that, Forte’s appeal that he wasn’t physically capable to stand trial due to his health was finally rejected by the Supreme Court of Vermont on December 10, 2021. It didn’t matter though because he passed away almost two weeks later.
The obvious inference is that Forte hoodwinked the prosecutors and the court for decades, claiming to be on the brink of death while living a comfortable retirement in Florida. The narrative recounted in USA Today jumps from prosecutors being skeptical of his claims of ill health in 1996 to them being again skeptical in 2017. What happened in the two decades in between?
There are hints: Forte continued to communicate with the court in Vermont, recounting his always-declining health; but no independent inquiries were made. It appears Forte never had to attend court in Vermont; never had to submit to an independent physical examination; and prosecutors failed to have Forte’s ongoing claims checked – even though, by 1996, they knew he had been exaggerating at least some claims.
How could the authorities permit a man accused of such grave crimes to avoid retrial (after a conviction!) for more than twenty years? One possible explanation is that the prosecutor’s office was simply well played: the case was given a low priority, and the biannual health updates from Forte became tick-the-box exercises before the file cycled back to the bottom of the pile. Although this was extraordinary, ticking boxes is an exercise that has no natural lifespan.
Other interpretations are hinted at in the circumstances and are not benign. Leonard Forte was a detective-investigator for a District Attorney’s office in New York state, and had friends in law enforcement and, allegedly, on the bench. The original investigators told the USA Today journalist that as early as the grand jury presentation, a judge warned the presenting lawyer to pull her punches. The first grand jury refused to indict. Even after succeeding with a second grand jury and securing a conviction, a finding of mistrial on the basis of an overly emotional prosecution is striking and unusual – and evidently so offensive to at least some of the prosecutors, that they fought that determination for nearly seven years. If this occurred 100 years ago, or in a country with fragile rule of law standards, many would suspect that the case was never reheard because of improper influence. These suspicions arise however, and persist, when the inferences are made in the context of unusual decisions and a bizarre procedural history. Conspiracy theories also abound when there is no assurance of transparency once the injustice comes to light.
Forte, if his original conviction had been upheld, or if he had been found guilty on retrial, should have spent many of the past 30 years in jail. Forte lived his entire life free, most of which was seemingly healthy. And now he is dead. This case failed to mete out justice and the burden on the victim is obvious: the 12-year-old victim is now in her 40s. She has had to live her life under the shadow of a criminal case that was never completed.
One further issue that the Forte fiasco illustrates are the natural consequences of asymmetric incentives. While few criminal defendants can hope to be quite as successful in delaying trial indefinitely, the Forte case dramatically illustrates a number of dynamics. First, while the prosecutors presumably had an interest in bringing Forte to trial, and Forte presumably had an interest in delay, these interests were not nearly of equal strength. The benefit of delay to Forte was enormous – he faced a lengthy term of imprisonment. The benefit of timely justice to the prosecution was, in contrast, much weaker. Prosecutors might have had a sense of professional accomplishment or duty done for bringing him to trial, but they were unlikely to receive public applause after a mistrial and seven years of unsuccessful appeals.
This reality is commonly appreciated but solutions remain elusive. The Forte case supports the view that the courts cannot expect the parties to achieve timeliness when these asymmetries are baked into the system. Although all the actors come out badly in the Forte saga, many lay readers will react with: How did the Court allow this to happen?
One potential benefit of R. v. Jordan is that, by putting an onus on defence lawyers to show preparedness for trial, there may be greater incentive for criminal defendants to press for trial. It will be interesting to see how this in fact works itself out in the trenches of trial practice.
Transparency has an impressive, but often limited, after-the-event effect. When this case came to the bright lights of a national front page story, veteran legal observers speculated on how the Vermont system would respond. Vermont prosecutors appeared to have finally grasped the nettle, telling the court on December 9th that they were prepared for trial, and securing a date for jury selection. The prosecutor who had been in charge of the file was replaced, and a group of high-profile lawyers named to the trial team, including two former Vermont Supreme Court justices, one of whom was also a six-term Vermont Attorney General.
Forte’s continuing claims of ill health were temporarily rejected at the December 9th hearing, with his existing medical records not deemed sufficient to justify another trial delay. His appeal failed on December 10, 2021, only after which he died. Justice delayed this long was truly and thoroughly denied.
