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Man Agrees to Plea Deal in Case of Disputed Frost Documents

Timothy Bernaby, of Hartland, looks to his public defender Jordana Levine during his arraignment in Windsor District Court in White River Junction, Vt., on Feb. 13, 2012. (Valley News - James M. Patterson)

Timothy Bernaby, of Hartland, looks to his public defender Jordana Levine during his arraignment in Windsor District Court in White River Junction, Vt., on Feb. 13, 2012. (Valley News - James M. Patterson)

A Hartland man pleaded guilty yesterday to illegally taking letters written by the 20th Century poet Robert Frost that were left in a desk donated to the Listen Center three years ago.

Facing the prospect of a trial on a felony embezzlement charge, Tim Bernaby, 44, on Tuesday accepted a plea deal on a misdemeanor charge of unlawful taking of personal property for taking two letters and 13 Christmas cards written by Frost, most of which were addressed to his former secretary. The charge carries a $100 fine.

Bernaby, a former Listen store clerk, maintained that he took the papers in 2010 not from a desk that had been donated to the nonprofit, but rather from a trash can — a potentially significant difference legally — and was unaware of their value.

He eventually sold the letters to a Plainfield man for $25,000.

“Mr. Bernaby came into possession of the items, perhaps knowing their value, perhaps not,” Windsor County State’s Attoney Michael Kainen said during a hearing in Windsor Superior Court.

The letters are currently in possession of the Plainfield Police Department, Kainen said, and a pending civil case in Sullivan County Superior Court in Newport will determine their lawful owner .

Further complicating matters, the Hanover man who donated the desk to the Listen Center died while the cases were pending, Kainen said. Hewette Elwell Joyce Jr. insisted he never meant to leave the letters in a desk drawer and wanted them back. His estate, Kainen said, is now seeking possession of the papers, along with the Listen Center, which has maintained that it controls donated property, and Tom Cady, the man who bought the papers from Bernaby.

“Cady believes he is in fact the rightful owner, the Listen Center believes it’s the rightful owner and would turn it back to Hewlett Joyce’s family,” Kainen said.

Cady’s attorney, Brad Wilder, confirmed the ongoing proceedings, but declined further comment.

“It may or may not have any effect on Mr. Cady’s claim,” Wilder said. “We’re going to have to wait and see.”

Bernaby’s attorney, Mark Furlan, could not be reached for comment late yesterday.

Police say that Bernaby, who worked at the White River Junction Listen Center store, rifled through a desk that had been donated by Joyce, saw the Frost name on the documents and took them, according to court documents.

Listen Executive Director Merilynn Bourne said that was in violation of the nonprofit’s policy and that the Center wants the papers returned to the Joyce family.

Joyce told authorities that his family had not intended to donate the items, which were forgotten in the desk.

Authorities have not explained how Bernaby, once in possession of the papers, became connected with Cady, who eventually gave the documents to authorities for safekeeping, while the courts resolve ownership.

In an interview after Tuesday’s hearing, Kainen said the tangled saga would have posed difficulties during a trial.

For starters, prosecutors likely would have needed Cady to testify, but Cady would have little motivation to help any effort that ended with a guilty finding against Bernaby, Kainen said. Laws generally hold that buyers who purchase items determined to be stolen have no claim to them. Moreover, cultural property laws generally require that buyers return stolen items without compensation.

“With Mr. Bernaby’s plea, Mr. Cady’s title is somewhat diminished, but that’s for the civil lawyers to decide,” Kainen said.

Additionally, it was unclear if the prosecutor could enter the key piece of evidence — the letters — into evidence. Even if Kainen negotiated to temporarily take custody of the letters for the trial, evidence entered during a trial customarily stays with the trial court through the duration of the appeals process, which could take years.

Kainen said he likely would have sought to enter copies of the documents into evidence, but that could have been contested by defense attorneys.

“There were some issues,” Kainen said.

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

CORRECTION

The estate of the late Hewette Elwell Joyce Jr. is seeking possession of letters written by Robert Frost that were left in a desk Joyce donated to the Listence Center three years ago. Joyce's first name was misspelled in an earlier version of this story.