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Vt. Supreme Court Orders New Bolaski Bail Hearing

Kyle Bolaski walks into a  Windsor County District Court courtroom for a status conference on May 7, 2014. 
Valley News - Jennifer Hauck

Kyle Bolaski walks into a Windsor County District Court courtroom for a status conference on May 7, 2014. Valley News - Jennifer Hauck Purchase photo reprints »

White River Junction — The state Supreme Court has ordered a new bail hearing for Kyle Bolaski, who is awaiting a new trial after the Supreme Court overturned his second-degree murder conviction last month.

Bolaski, 30, of Springfield, Vt., was convicted of second-degree murder in 2011 in the Chester, Vt., shooting death of Vincent Tamburello, Jr. Last month, the state Supreme Court, citing improperly excluded evidence and flawed jury instructions, ordered a new trial.

When Bolaski appeared in Windsor Superior Court two weeks ago, Judge Karen Carroll ruled that Bolaski should be held without bail while he waits for a new trial. Bolaski’s attorney argued he should be freed on bail, because that was his status prior to the first trial in 2011.

On Thursday, the state Supreme Court reversed that decision — with a three member panel of Supreme Court justices signing off on the order — concluding that Bolaski and his attorney did not have an “adequate opportunity to present evidence and argument regarding the potential for pretrial release.”

Bolaski has spent the last three years in Kentucky serving the beginning of a 25-year-to-life sentence. He was brought back to Vermont after the Supreme Court’s ruling, and is currently in the Southern State Correctional Facility in Springfield, Vt.

Kyle Bolaski’s father, David Bolaski, said Thursday that he’s “very pleased” with the Supreme Court’s ruling.

“The first thing we are looking to do is to get him released to have him home with us,” David Bolaski said. “That obviously is a paramount importance, and we’re excited about being able to do that.”

Prior to Bolaski’s 2011 conviction, his bail had been set at $100,000 with conditions, and his family posted the bail so Bolaski could live at home with them in Springfield.

Bolaski has said he shot Tamburello once in the leg and once in the buttocks in self-defense after Tamburello chased him with a splitting maul during a dispute in 2008 at a Chester park.

Bolaski’s family is still hopeful that the judge will release him on bail with conditions, and David Bolaski said he is prepared to pay if a bail amount is set. If Bolaski is released on bail, David Bolaski said, his son would live with him in Springfield.

Prior to Bolaski’s May 7 status conference, Bolaski’s attorney Brian Marsicovetere filed a motion to vacate the hold without bail order and reinstate the same conditions of release that were in place prior to his conviction.

Deputy Franklin County State’s Attorney John Lavoie, the prosecutor in the case, also filed a motion to hold the defendant without bail in the days prior to the status conference, but the court had not received the motion by the May 7 hearing.

In his appeal to the Supreme Court, Marsicovetere argued that Bolaski was entitled to prior notice and an opportunity to be heard regarding his bail and his conditions of release.

“The record reveals that he was not advised that the issue of bail was being decided at the status conference, and that he was not offered the opportunity to present evidence bearing on the issue of whether bail should be denied,” according to the appeal.

The Supreme Court ruled that there was confusion at Bolaski’s May 7 status conference about his default bail status, and noted that during the status conference, the lawyers discussed the bail motions, but no further evidence was presented.

The Supreme Court agreed with the defendant that he did not have “adequate, clear notice that the status conference would include a bail hearing, and therefore did not have an adequate opportunity to present his argument and relevant evidence.”

While the Supreme Court said there is no dispute that the evidence of guilt is great in this case, the defendant is still entitled to a hearing to allow the judge the discretion of whether or not to allow bail. (Second-degree murder has a maximum sentence of life in prison, and a person charged with an offense that is punishable by life imprisonment can be held without bail when the evidence of guilt is great.)

In their initial motions to the court earlier this month, the defense argued that from August 2008 through May 2011, Bolaski remained in the community with conditions, including a curfew and in-person reporting to the Springfield Police Department. Marsicovetere argued in that motion and during the May 7 status conference that Bolaski should be released under the same conditions and bail that he had pre-trial.

But Lavoie argued that Bolaski should be held without bail, and during the May 7 status conference, Lavoie argued that “things have changed.”

Carroll ultimately ruled in favor of Lavoie’s request, noting that there was risk of flight based on the potential penalty that the court could impose if Bolaski is convicted again.

Lavoie said Thursday afternoon that he thinks the evidence of guilt in this case is great, but declined to comment further. Marsicovetere declined to comment.

A bail hearing date has yet to be scheduled.

Sarah Brubeck can be reached at sbrubeck@vnews.com or 603-727-3223.