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Experts Analyze Jacques’ Deal

Cite Years in Court, Risks as Reasons Pleas

Michael Jacques appears in Orange Superior Court in Chelsea, Vt., on June 30, 2008. (AP Photo/Pool, Stefan Hard)

Michael Jacques appears in Orange Superior Court in Chelsea, Vt., on June 30, 2008. (AP Photo/Pool, Stefan Hard)

For five years, lawyers filed hundreds of pages of written arguments and spent untold hours preparing to take Randolph resident Michael Jacques to trial and have him executed for allegedly kidnapping, raping and murdering his 12-year-old niece. But, only weeks away from when the trial was to begin, prosecutors suddenly announced Friday night that they had struck a plea deal and would abandon the trial in exchange for a sentence of life without parole.

Why did prosecutors enter a plea, and why did they do it now, only weeks before jury selection was to begin?

Prosecutors from the U.S. Attorney’s Office in Burlington won’t discuss their decision, but legal experts, some of whom said they were surprised by the plea deal, told the Valley News the decision could have been made for any number of reasons, but likely was motivated by a desire to avoid years of appeals and the risk — however slight in what seemed an open and shut case — that something could go wrong for the prosecution at trial.

“Any time you can have the certainty of a sentence on a severe case like this, there’s a lot to be said for it,” said Hartford defense attorney Scott McGee, a former federal prosecutor. “You avoid the possibility of appeal, trial error, and the vagaries of the jury process. There’s a big public benefit, as long as the end result is accomplishing justice. Death sentences take an enormous time to work through the system, so avoiding that and having closure is a big deal.”

Vermont Law School professor Michele Martinez Campbell, a former federal prosecutor who has closely followed the Jacques case, said she too was surprised by the decision. Though the alleged crime occurred entirely within Vermont, authorities moved the case to federal jurisdiction years ago, motivated, it was widely assumed among legal experts, by the desire to file a capital charge. (Vermont does not have a state death penalty.)

The decision in 2009 to seek the death penalty for Jacques was made by U.S. Attorney General Eric Holder, who also decided last week to enter into the plea. At the same time, prosecutors in the U.S. Attorney’s Office and Jacques’ defense team have remained largely remained unchanged.

“Looking back at the origins of the case, the basis for pursuing the federal charge was, in significant part, to bring it as a capital case, because that penalty wasn’t available in Vermont,” Martinez Campbell said. “The capital nature of the case was not an afterthought. It was there from the beginning. There was some degree of controversy at that time. Given that, it makes it more surprising.”

Moreover, the public docket shows that no new evidence has been submitted, and no novel legal theories have been advanced in motions to help shape the defense.

U.S. Attorney Tristram Coffin declined to comment yesterday, and Jacques’ attorneys did not respond to a request for comment about prosecutors’ decision.

In a four-paragraph decision announcing the plea deal, Coffin said the plea was motivated by a desire to bring “finality,” to the process and the “potential impact,” on a key witness, a then 14-year-old girl whom Jacques has allegedly raped repeatedly and who unwittingly helped lead Brooke Bennett to her death in July 2008 in Randolph.

From affidavits and other court documents, it has seemed clear from the beginning that witness would likely have to testify, as she was allegedly privy to developments no one else but Jacques knew. (As a general practice, the Valley News does not identify victims of alleged sex assaults.)

Perhaps, experts said, the witness had a change of heart about being willing to testify, or prosecutors reconsidered their willingness to put her through the ordeal of testifying.

“You would expect some reason, some change in the case,” Campbell said. “The evidence has been clear from the beginning. So much is documents and electronic evidence — there is a real trail there. The only human variable is this witness, but that’s been true since day one. She was right in there. Her involvement is a difficult part of the case and was always a difficult part of this case. It hasn’t changed.”

Norwich attorney George Ostler, a criminal defense attorney, said he found both reasons provided by the U.S. Attorney’s Office to be persuasive, but stressed that the decision was made in Washington D.C., not in Burlington.

“When you’re dealing with the federal government, it’s functionally different than the state anyway,” said Ostler, who has tried cases in the federal court system. “It’s very hierarchical. It’s typical for prosecutors not to have total authority over the case. Policy really comes from the top down, and with the Justice Department, death penalty cases go right to Holder and his people.”

Ostler said that, while prosecutors’ stated desire to protect the then 14-year-old girl from testifying was logical, the decision could also signify an evolving philosophy in how the U.S. Justice Department views death penalty cases.

“It could be they were hesitant about putting her on the stand,” Ostler said. “It also could be changing views about the death penalty at the federal level. That’s entirely possible. Theses cases come from the top.”

It is not uncommon for lawyers, especially in state courts, to reach plea deals on the eve of trials, but experts said it is a little more unusual in a capital case.

Norwich attorney Wayne Young, who has litigated federal cases, said the unique nature of capital cases — namely, the years of appeals that ensue after any conviction — likely provided a strong incentive to settle.

“If the case goes to trial, there will be years and years of appeals and habeas corpus proceedings through several layers of courts with some possibility of a reversal,” Young said. “A guilty plea with an appeal waiver significantly reduces the scope of appellate proceedings.”

Young mentioned the possibility of one juror who, though heavily vetted during the jury selection process for bias, determines after sitting in the courtroom day after day, decides they cannot morally vote to execute someone.

“The prosecutors may have some concern that at least one juror might be opposed to the death penalty and that could affect the verdict,” Young said. “A guilty plea eliminates that possibility.”

If they were concerned about a wavering juror, Vermont prosecutors may have recently received a fresh reminder of how a capital murder case can be easily be jeopardized.

Earlier this summer, lawyers for Rutland resident Donald Fell, on death row after he was convicted in a 2005 murder trial in federal court, successfully petitioned to have three jurors from the case return to court and answer questions about their conduct.

The defense says three jurors misled lawyers during the jury-selection process or engaged in questionable conduct during the trial, and is asking for a new trial for the alleged 2000 killing,

Ironically, the hearing in which those jurors will be interviewed is scheduled for Thursday, the same day a hearing on the Jacques case had been scheduled, before Friday’s announcement of the plea deal.

Mark Davis can be reached at mcdavis@vnews.com or 603-727-3304.

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