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Jim Kenyon: Invoice to Injury

I didn’t think the state of Vermont could sink lower than it did in 2006, when six members of the state police SWAT team were given awards for their roles in the killing of Joseph Fortunati, a 40-year-old mentally-ill man camped out in the woods of Corinth. At a ceremony attended by then-Gov. Jim Douglas, state officials even had the gall to save the most prestigious awards for the two troopers who fired the lethal shots.

But apparently Bill Sorrell and his subordinates at the Attorney General’s Office think that when it comes to the Fortunati case, no amount of insensitivity is too much.

Sorrell’s office had the audacity to ask a federal judge to require Fortunati’s family to reimburse the state nearly $11,000 for expenses it incurred while successfully defending a civil rights lawsuit that the Fortunatis had brought against state police. In late May, U.S. District Court Judge J. Garvan Murtha denied the request. I suspect, however, that Sorrell wasn’t too upset.

This appears to me to be a not-so-subtle legal ploy to intimidate. The state’s top law enforcement official was sending a message — you might even call it a threat — to anyone else contemplating a civil rights suit against the state now or in the future.

The state’s decision to go after the Fortunatis has a “chilling effect,” on the public, said George Spaneas, the Lebanon lawyer who represented the family. “The government, with all its resources, shouldn’t be trying to make people afraid of standing up for their civil rights by threatening to send them a bill,” said Spaneas. Among other things, the Attorney General’s Office wanted the Fortunatis to pay $2,000 for a court reporter to attend and transcribe the deposition of an expert witness. The state also wanted to be reimbursed nearly $1,000 for videotaping the deposition and $500 to cover the expert witness’s expenses, including airfare from Virginia to Vermont.

Sorrell’s maneuver didn’t go unnoticed by the Vermont chapter of the American Civil Liberties Union. “I can’t believe the state is going to make a practice of this,” said Executive Director Allen Gilbert. “This is really a swat at people who are already feeling a great deal of pain for their loss.”

Sorrell was not in Montpelier when I called his office last week. But I did hear back from Megan Shafritz, who heads the attorney general’s civil division. The state doesn’t seek to recoup out-of-pocket expenses, which is allowed under federal court rules, in all cases, she told me.

“In this case, the costs were such that we had an obligation to taxpayers to recoup funds that were spent in defense (of the troopers),” said Shrafitz. (This is the same Attorney General’s Office that spent $180,000 of taxpayer money on outside experts, including a Washington, D.C., law firm, in losing its bid to shut down the Vermont Yankee nuclear plant last year.)

As I see it, the Fortunati case points to a fundamental problem with the way that Sorrell approaches his job. Since entering office in 1997, Sorrell has seemed to think his job is to serve as an apologist for law enforcement agencies rather than defending the rights of everyday Vermonters.

What went down in the woods of Corinth on June 24, 2006, has always been a bit murky. But Sorrell, as he tends to do, showed little hesitation in giving his stamp of approval on the troopers’ actions.

The encounter began when environmental workers called police to report that Fortunati, who suffered from schizophrenia and bipolar disorder, had confronted them near Copper Mine Road.

The state police SWAT team, dressed in full camouflage and armed with assault rifles, approached the woods where Fortunati had made a camp near his family’s land. The troopers surrounded Fortunati, who became agitated and ignored their commands to surrender. What happened next has remained a matter of dispute.

Some SWAT team members said Fortunati drew a .22 caliber handgun and brandished it in a threatening manner. But Sorrell’s office has glossed over for years the assertion of trooper Jeremy Hill, who, according to court documents, said he never saw Fortunati point the gun, which remained in his waistband, at troopers.

For many people, myself included, Fortunati’s killing was an eye opener. The SWAT team made no attempt to bring in a mental health expert or a member of Fortunati’s family to talk with him. The squad seemed determined to bring Fortunati out of this woods, dead or alive. The entire encounter lasted 12 minutes.

To me it seemed more like a military than a law enforcement operation, an impression that has been reinforced by several fatal incidents since then.

Three hours after the shooting, Fortunati’s parents, Susan and Robert, and brother, Mark, drove to the scene. Robert Fortunati was arrested on charges of negligent driving and resisting arrest. Troopers held Susan and her son at gunpoint for more than 30 minutes and handcuffed them before they were released. (The charges against Robert Fortunati were later dropped.)

The family sued for wrongful detention. But a federal jury dismissed the claims of Robert Fortunati, and failed to reach a verdict on the claims of his wife and son. A federal appeals court also upheld a lower court judge’s dismissal of the family’s lawsuit that claimed troopers had used unnecessary force against Joseph Fortunati.

Murtha, the federal judge, didn’t show much sympathy for the Fortunatis’ argument during court proceedings, but came down strongly in their favor when the state asked for $11,000 in legal expenses.

Murtha ruled that the Fortunatis had not acted in “bad faith” in suing state police. “The litigation in this case was also ‘complex and protracted,’ ” Murtha wrote. “Together, the use of deadly force by the (Vermont State Police) and Mr. Fortunati’s mental illness make this action a matter of significant public importance.”

Although apparently not to Sorrell.

Jim Kenyon can be reached at