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Vt. Supreme Court Rules No ‘Attempt’ in Fair Haven Plot Case



VtDigger
Thursday, April 12, 2018

Montpelier — The Vermont Supreme Court has ruled that the alleged actions of a former Fair Haven High School student, who has been charged with plotting to shoot up the high school, do not meet the legal definition of “attempt.”

On the basis of that finding, Jack Sawyer, 18, could be released from jail ahead of his trial.

Whether Sawyer’s actions — which police and prosecutors have said included keeping a journal outlining his plans, and buying a shotgun — amounted to an “attempt” has been the central question in the early stages of the case.

Sawyer pleaded not guilty in February to four felony charges, including counts of attempted first-degree murder and attempted aggravated murder. The Supreme Court said the severity of the charges was not justified.

“The sole question before this Court is whether the evidence of guilt is great that defendant attempted to commit any of the four charged crimes given the definition of ‘attempt’ under Vermont law,” justices wrote in their decision.

“We hold that the weight of the evidence is not great that defendant has committed any act or combination of acts that would satisfy Vermont’s definition of an attempt to commit any of the charged crimes. We reverse the trial court’s hold-without-bail order and remand for further proceedings,” the decision said.

The Supreme Court’s decision was handed down within hours of Gov. Phil Scott citing the Sawyer case as he signed three bills changing the state’s gun laws on Wednesday.

Scott has said the chilling details in a police affidavit in support of Sawyer’s arrest prompted him to shift his stance on the need for the added gun legislation.

Kelly Green, a public defender representing Sawyer, said she learned of the ruling late Wednesday afternoon.

She said she then reached out to Sawyer, who is currently being held at the Rutland jail, and relayed the news to him.

“Jack is a smart young man and is engaged,” Green said. “Of course, he’s pleased.”

Just where the case goes from here is still a bit of an open question, Green said, adding that the hold without bail order is still in place at the moment.

“That order will remain in effect until we get back to court — back to court meaning the trial court,” she said. “At that point, the decision will be made how to proceed.”

Green said she expects that to happen fairly quick, possibly before the next scheduled hearing in the case set for April 27.

She had earlier filed a motion to dismiss the case against her client, and says now she intends to refile that motion.

“The importance of this decision is it sets the record straight as to the law of attempt,” Green said. “Jack is charged with attempted crimes, so it was important for us to have an accurate decision describing attempt law.”

Asked if her client could potentially be charged with other offenses, the defense attorney replied, “I can’t think of any.”

Rutland County State’s Attorney Rose Kennedy said she was “incredibly disappointed” by the decision, and the legal interpretation underlying it.

“The State believes that Mr. Sawyer did commit an ‘overt act’ in satisfaction of the attempt statute and as determined by the trial court judge. Nevertheless, the State respects the Supreme Court’s authority and is bound by its ruling,” she said in an emailed statement.

The clearest precedent for whether Sawyer’s actions constituted an attempt under Vermont law is State v. Hurley, a 100-year-old case in which a prisoner obtained the tools to saw his way out of jail but never actually started sawing.

The Supreme Court’s decision was that this did not constitute an attempt at an escape. The decision was cited in motions by Sawyer’s defense and state prosecutors during deliberations before the Rutland Superior criminal court.

“Just as the defendant in Hurley did not commit an attempt to break out of jail based on the mere possession of the hacksaws to saw through the jail window bars, defendant in this case took no action so proximate to the commission of the school shooting as to constitute an attempt,” the justices wrote.

“Each of defendant’s actions was a preparatory act, and not an act undertaken in the attempt to commit a crime,” it said.

Judge Thomas Zonay, who is presiding over the case at the trial court level, ruled last month that Sawyer could be held without bail, and that there was enough evidence for a jury to convict Sawyer of the charges against him.

Steps allegedly taken by Sawyer in planning the crime included buying a shotgun and ammunition in Rutland days before his arrest, doing target practice with the shotgun, securing $500 in Bitcoin online currency to anonymously buy an AR-15 on the “dark web,” and researching the school’s calendar to pick a date (March 14).

“When considered in light of the evidence concerning his focus and commitment to conduct the shooting, as well as his past actions to accomplish a goal that he sets his mind to, absent the police interruption the Defendant’s acts were likely, if not assured, to end in the consummation of his crimes,” Zonay wrote.

The Supreme Court said that wasn’t enough to justify an attempt charge under Vermont law.

“Beginning with Hurley over a century ago, this Court has consistently held that preparation alone does not satisfy the high bar required to prove an attempt,” the judges wrote. “The Legislature can, if it chooses, deviate from this long-established standard by passing a law revising the definition of attempt.”

The Legislature may be doing just that.

Last month, as work began drafting a new school safety bill, John Campbell, executive director of the Department of State’s Attorneys and Sheriffs, proposed a reform to make it easier for law enforcement to prosecute attempted crimes.

Instead of prosecutors having to prove that an “overt” attempt was taken toward carrying out a crime, they could apply a “substantial step analysis.”

That would require establishing a person’s intent to commit a crime and identifying a step corroborating that intent.

Campbell has said the legislation isn’t aimed at the Sawyer case, but rather in response to mass shootings that have taken place around the country.

The status of the proposal was not immediately available on Wednesday evening.