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Judge: Man to Remain in Prison Ahead of New Trial in 2008 Shooting

‘Things Have Changed’

  • Before the start of a status conference, prosecutor John Lavoie tries the courtroom door at the Windsor County District Court in White River Junction, Vt, on May 7, 2014. Behind him waits Kyle Bolaski's family -- from left are Jean Bolaski, Sherry Fuller, parents Kathy and David Bolaski and Micky Blair. <br/>Valley News - Jennifer Hauck

    Before the start of a status conference, prosecutor John Lavoie tries the courtroom door at the Windsor County District Court in White River Junction, Vt, on May 7, 2014. Behind him waits Kyle Bolaski's family -- from left are Jean Bolaski, Sherry Fuller, parents Kathy and David Bolaski and Micky Blair.
    Valley News - Jennifer Hauck Purchase photo reprints »

  • Kyle Bolaski walks into a  Windsor County District Court courtroom for a status conference on May 7, 2014. <br/>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 »

  • Vince Tamburello Sr. speaks to reporters outside Windsor County District Court in White River Junction, Vt. on May 7, 2014. <br/>Valley News - Jennifer Hauck

    Vince Tamburello Sr. speaks to reporters outside Windsor County District Court in White River Junction, Vt. on May 7, 2014.
    Valley News - Jennifer Hauck Purchase photo reprints »

  • Before the start of a status conference, prosecutor John Lavoie tries the courtroom door at the Windsor County District Court in White River Junction, Vt, on May 7, 2014. Behind him waits Kyle Bolaski's family -- from left are Jean Bolaski, Sherry Fuller, parents Kathy and David Bolaski and Micky Blair. <br/>Valley News - Jennifer Hauck
  • Kyle Bolaski walks into a  Windsor County District Court courtroom for a status conference on May 7, 2014. <br/>Valley News - Jennifer Hauck
  • Vince Tamburello Sr. speaks to reporters outside Windsor County District Court in White River Junction, Vt. on May 7, 2014. <br/>Valley News - Jennifer Hauck

White River Junction — David and Kathy Bolaski had just arrived in Kentucky to visit their son, Kyle, in prison last month when he called to let them know the news: The Vermont Supreme Court had overturned his second-degree murder conviction in the 2008 shooting death of Vincent Tamburello Jr., ordering a new trial.

That momentum was somewhat tempered in Windsor Superior Court Wednesday, when a judge ordered Bolaski held without bail at the Southern State Correctional Facility in Springfield, Vt., as he waits for his case to proceed.

Within hours after the hearing, his defense attorney appealed the hold-without-bail order to the state’s high court.

“Do I agree with it? No, but we’ll see where it goes from here,” David Bolaski said outside the courtroom after the 20-minute hearing. “I have to keep my eye on the focus here, which is the fact that Kyle is no longer convicted of second-degree murder and he’s been granted a new trial with conditions that were not in place before. ... I’m dwelling on the positives of this.”

It was Bolaski’s first return to Vermont since the former Springfield, Vt., resident began serving a sentence of 25 years to life in Kentucky three years ago. Bolaski has said he shot Tamburello twice in self defense — once in the leg, once in the buttocks — after Tamburello, 32, chased him with an ax during a dispute between Tamburello and a group that included Bolaski at a park in Chester, Vt. The two men did not know each other.

Meanwhile, Tamburello’s parents, Ronnie and Vincent Tamburello Sr., who live in the Boston area, said they were pleased that Bolaski would remain in jail. Vincent Tamburello Sr. noted that the Supreme Court decision, although disappointing, was not based on the case’s evidence, and he said he was hopeful that the special prosecutor assigned to the case could get a repeat conviction.

He said he and his wife would continue to attend court proceedings.

“They murdered my son, killed my son,” he said. “I will never stop fighting for Vinnie, I will never stop coming for Vinnie.

“The evidence is the evidence, they can’t get away from the evidence,” he continued. “There’s tons of evidence obviously against him, and none of that’s changed; he will be convicted again. Now it’s just that we have to go through and relive it, and that’s the only bad part. Other than that, I was happy for today’s events. I was glad he’s kept in jail, he deserves to be there.”

The Tamburellos entered the courthouse a short time after Bolaski’s supporters, including two of Kathy Bolaski’s sisters and David Bolaski’s sister-in-law.

The groups waited in separate areas of the lobby before the courtroom opened, and sat on opposite sides of the gallery.

Shortly before the hearing began, Kyle Bolaski entered in a navy blue jumpsuit and shackles, noticeably heavier and tanner than he was during the 2011 trial. He turned 30 years old in January.

Deputy Franklin County State’s Attorney John Lavoie, the special prosecutor assigned to the new trial, argued that “things have changed” since Bolaski was first charged in 2008 because a jury convicted Bolaski after less than an hour.

“He has heard all of the evidence now, and he’s seen a jury of his peers react to it and how quickly they rejected the self-defense claim,” Lavoie said in court. “He now has a strong incentive to flee. On top of that, he’s also seen what sort of sentence he might be looking at. I know that we’re starting from zero and we’re starting with a clean slate, but he now knows what the real exposure is.”

Bolaski’s attorney, Brian Marsicovetere, moved to vacate the hold-without-bail order, arguing that Bolaski’s bail status should return to what it was before the trial, when he had posted $100,000 bail and was released on conditions.

“The arguments that the state makes about changed circumstances, there’s really no changed circumstances,” Marsicovetere said. “He was facing the charges that he’s facing now before he went to trial. ... That conviction having been reversed, the conditions of release that were in place prior to that verdict ... should be re-imposed.”

Judge Karen Carroll ultimately accepted Lavoie’s request to have Bolaski held without bail and made reference to “some risk of flight merely because of the potential penalty that the court may end up imposing here.”

“The court does consider the fact that although the defendant is presumed to be innocent at this time, that doesn’t affect the court’s ability to consider the risk that he is facing at this time and his perception of this risk, which here would include the fact that a jury of his peers has found him guilty of second degree murder (and) a lengthy jail sentence was imposed,” Carroll said. “So going forward a reasonable person in Mr. Bolaski’s position would be aware that a jury of his peers found him guilty of second-degree murder in an extremely ... short period of time after a lengthy criminal trial. And that he was sentenced to a significant sentence at that time.”

Marsicovetere said he would appeal that decision to the Supreme Court, and paperwork to that effect was filed by the end of the day.

He declined comment after the hearing.

Lavoie offered little except to say he was not sure about a timeline for a trial to proceed.

Another status conference is scheduled for June 10.

David Bolaski said he and his family felt “very positive” about the Supreme Court overturning the conviction.

“It’s pretty rare that they overturn a homicide conviction, so I remain guardedly optimistic,” he said, “but I remain very optimistic about my son’s innocence in this and his claim of self-defense.”

Kathy Bolaski said her son has been participating in a prison program that trains dogs scheduled to be euthanized to be more adoptable.

During oral arguments before the high court in April 2013, another attorney for Bolaski, William Nelson, challenged Judge Patricia Zimmerman’s ruling that blocked the jury from learning that Tamburello had attempted suicide and threatened to make additional attempts in the days before the shooting, and from learning details of Tamburello’s medical records.

Nelson also argued Zimmerman gave erroneous jury instructions that he said led to jurors not fully considering a possible conviction on a lesser charge.

In the decision issued last month, the Supreme Court sided with Nelson, ruling that Zimmerman, a former Windsor County State’s Attorney who is now retired, was wrong to exclude evidence of Tamburello’s mental health in the months before the shooting and gave improper instructions to the jury.

“However the jury evaluated the evidence, it was clear that the victim was acting irrationally and out of control by chasing a person he had never met before while swinging a splitting maul, a very dangerous weapon,” said the decision, written by Justice John Dooley.

According to the decision, a toxicology report showed Tamburello had “a number of drugs” in his blood and urine, including Xanax, THC, methadone, Paxil, Restoril, Oxazepam, and cannabanoids.

Maggie Cassidy can be reached at mcassidy@vnews.com or 603-727-3220.

CORRECTIONS

Micky Blair is a maternal aunt of Kyle Bolaski. She was misidentified in an earlier version of a photo caption for a photo associated with this story.

Bolaski is awaiting a new trial on a second-degree murder charge after shooting Vincent Tamburello Jr. in the leg and buttocks in 2008 after Tamburello chased him to his truck with a splitting maul and began striking the vehicle. An earlier version of this story was imprecise on some details of the shooting.