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Lawyers in Brooke Bennett Case Snipe

Burlington — After waiting nearly five years for a trial, lawyers defending convicted sex offender and Randolph resident Michael Jacques against charges that he raped and killed his 12-year-old niece, Brooke Bennett, appear to be getting testy. In court filings last week, they accused federal prosecutors of delaying the process.

Prosecutors began a recent court filing by pointedly noting 15 delays in the case that they attribute to defense lawyers — as if U.S. District Court Judge William Sessions, who has presided over the case from the beginning and granted each request, needed a reminder. “During the intervening five years, the defense filed 15 motions for extensions of time, and repeatedly sought delays based upon scheduling conflicts and other reasons,” prosecutors from the U.S. Attorney’s Office wrote.

In a reply motion, defense attorney David Ruhnke suggested that the government’s comments were directed to the media, and noted that prosecutors had also requested delays. “One wonders who the government’s audience is for that observation, since this court is obviously aware of the various extensions of deadlines that have been proposed by both sides, most often on consent,” Ruhnke said. “Perhaps, though, it is time to stop throwing stones.”

The trial is scheduled to begin in September in U.S. District Court in Burlington, more than five years after Jacques allegedly raped his niece, suffocated her with a plastic bag and buried her body in the nearby woods. After a week-long search triggered by Vermont’s first Amber Alert, police found Brooke’s body in the woods near Jacques’ home. Jacques is also accused of trying to pin Brooke’s disappearance and death on a bogus international child-sex ring.

Jacques, 47, who has pleaded not guilty to a charge of kidnapping, death resulting, could face the death penalty if convicted.

Federal death penalty trials are broken into two phases: the traditional trial to determine guilt or innocence, and, if the defendant is found guilty, a separate penalty phase in which the same jurors decide whether to apply the death penalty.

The length of time that has elapsed since the June 2008 slaying appears to be a sore spot for attorneys. Their comments last week came as they tried to hash out a relatively routine matter: deadlines for turning over evidence and filing pre-trial motions.

Prosecutors suggested that the defense will present little evidence during the trial phase and want Jacques’ attorneys to turn over the evidence they will present during the penalty phase soon. Defense attorneys want to release evidence only after the trial phase is under way.

Prosecutors, who have turned over much of their evidence, say that puts them at a disadvantage.

“The defense has provided no discovery to the government,” prosecutors wrote. “As a result, the defense has long had a detailed understanding of the government’s case, while the government continues to have no idea what evidence the defense will rely upon at trial. … Because this case is expected to turn on the penalty phase (such that little or no defense evidence may be submitted at the guilt phase), the defense essentially wants to keep its case secret until midway through the trial.”

Ruhnke said that turning over evidence sooner could violate Jacques’ protection against self-incrimination. But in arguing that issue, attorneys took shots at each other for the numerous delays. Ruhnke, as prosecutors noted, has repeatedly sought extensions on deadlines, often citing scheduling conflicts with other cases he is handling across the country. (Ruhnke and his wife and law partner, Jean Barrett, specialize in representing defendants in federal death penalty cases. Ruhnke has represented several terrorist defendants in recent years.)

Assistant U.S. Attorney Bill Darrow and Barrett declined to comment last week. But Ruhnke has asserted that prosecutors have been responsible for delaying the case for nearly two years.

In the spring of 2011, with a trial date looming that September, prosecutors appealed Sessions’ pre-trial rulings, including one that barred certain pieces of evidence gathered against Jacques by an informant after Jacques was arrested. Those appeals were not resolved until earlier this year.

If prosecutors had not pursued the appeal, the trial would have occurred as scheduled in the fall of 2011, Ruhnke said.

“The government, of course, had every right to appeal,” Ruhnke wrote. “But the decision to appeal set this case back by two years, a circumstance the government never seems to acknowledge. With bloggers out there who have publicly stated that Mr. Jacques’ lawyers ought to be killed along with their client, needlessly casting aspersions on defense counsel is reckless and, it is hoped, will be avoided in the future.”

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