Court denies white nationalist: Defense, prosecution ready to take the case to trial

  • Max Misch appeared in court on July 22, 2019, in Bennington, Vt. (VtDigger - Mike Dougherty)

  • Max Misch, bottom right, participates by video link to a hearing in Bennington Superior criminal court on Monday, Dec. 20, 2021. (Screenshot) Screenshot

Published: 12/21/2021 9:27:32 PM
Modified: 12/21/2021 9:27:18 PM

A judge has denied a Bennington, Vt., white nationalist’s second attempt to have his firearm magazine charges thrown out, bringing the case closer to trial.

Max Misch, 38, is accused of possessing two large-capacity rifle magazines in 2019 despite a state ban. He asked the Vermont Superior Court to dismiss his twin misdemeanor charges in October, contending the state law limiting magazine sizes violates the Second Amendment of the U.S. Constitution.

The statute limits magazine sizes to 15 rounds for handguns and 10 rounds for long guns. Republican Gov. Phil Scott signed it into law in April 2018, two months after an alleged school shooting plot was uncovered in Fair Haven, Vt.

Misch previously argued the statute violated the Vermont Constitution, but the Vermont Supreme Court earlier this year upheld the Superior Court’s denial.

In a written order from Vermont Superior Court in Bennington last week, Judge Cortland Corsones ruled the statute does not violate the U.S. Constitution. He cited the Supreme Court’s decision in Misch’s first dismissal attempt, which found that the law’s objective is “significant, substantial, and important,” and there is a “reasonable fit” between the magazine ban and that objective.

Quoting the Supreme Court decision, Corsones wrote that the legislative record shows the magazine law was crafted to reduce the number of people who would be killed or injured in a mass shooting in Vermont.

“The Legislature’s aim was to prevent catastrophic harm to the people of Vermont — one of its core functions as our lawmaking body,” the judge quoted the Supreme Court as saying. “We conclude that the Legislature acted within its constitutional authority in determining that the limitation on large-capacity magazines furthers this goal.”

If found guilty, Misch faces a maximum penalty of one year in jail and/or a $500 fine on each charge of illegal magazine possession.

Misch attended a virtual hearing on the magazine charges and other cases in court on Monday.

Misch’s attorney, public defender Fred Bragdon, told Corsones he is ready to take the case to trial in light of the last plea offer from the state.

“I can’t get a worse sentence by losing and being respectful to the court,” he said.

The prosecutor, Assistant Attorney General Ultan Doyle, said he is also ready for trial.

Misch has a total of nine pending criminal cases in Bennington County, including two felony charges of first-degree aggravated domestic assault. Each charge carries a maximum penalty of 15 years in prison and/or a $25,000 fine.

Authorities accuse Misch of choking a woman and re-injuring her broken arm sometime between December 2020 and July 2021. Misch pleaded not guilty.

At the Monday hearing, Bragdon said he is ready to try this case. The prosecutor for those charges, Bennington County Deputy State’s Attorney Alex Burke, had the same position.

The judge decided to prioritize the magazine case on the trial list, saying it’s the older case and has “been highly litigated.”

No trial dates were discussed at the hearing.

Meanwhile, Misch is awaiting Corsones’ decision on the state’s request to have his bail in the magazine case revoked. Otherwise, the attorney general’s office asked that he be placed under house arrest.

Misch’s growing number of criminal charges since 2019, including violating conditions of release, constitute a threat to public safety, the attorney general’s office said in a written motion in November. Doyle reiterated this at the hearing.

Bragdon countered that the request to revoke bail on a “non-violent misdemeanor” case “would seem like an overreach by the state.”

Addressing his client’s domestic violence charges, Bragdon said Misch has already been ordered by the court not to have any contact with the complainant. The attorney said Misch and the woman are no longer living in the same apartment. Misch moved out and is living in a shelter.

Misch, a combat veteran of the Iraq war, told the court he will be moving into a new apartment in Bennington next month.

Jim Bastien, a clinician with the U.S. Department of Veterans Affairs in White River Junction, testified that Misch has been undergoing psychotherapy since 2015. He said Misch has a 70% service-connected disability for PTSD and combat-related trauma.

Corsones said he will issue a decision on the state’s request to revoke bail or impose home detention as soon as he can.

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