Judge rejects effort to revoke South Royalton man’s bail

  • Defense attorney Brian Marsicovetere, left, confers with his client, Jesse Durkee, of South Royalton, during a bail hearing in Windsor Superior Court in White River Junction, Vt., on Monday, Nov. 20, 2023. Deputy State’s Attorney Emily Zakauskas argued to have Durkee's bail revoked after he violated conditions of release. Judge Heather Gray denied the request but amended the conditions. (Valley News - James M. Patterson) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com. Valley News — James M. Patterson photos

  • Brian Marsicovetere, left, defense attorney for Jesse Durkee, of South Royalton, middle, questions Beth Willhite, of South Royalton, right, during a hearing in Windsor Superior Court in White River Junction, Vt., on Monday, Nov. 20, 2023. Willhite, whose home was allegedly broken into by Durkee in October, testified in support of a request from Deputy State’s Attorney Emily Zakauskas to revoke Durkee's bail after he violated conditions of release. (Valley News - James M. Patterson) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com. valley news — James M. Patterson

Valley News Staff Writer
Published: 11/21/2023 2:51:53 AM
Modified: 11/21/2023 9:03:48 AM

WHITE RIVER JUNCTION — A South Royalton man who is accused of breaking into neighbors’ homes twice within the space of a week will get to stay out of jail while his cases proceed, after a state judge rejected an attempt by prosecutors to revoke the defendant’s bail.

Judge Heather Gray denied Windsor County prosecutors’ motion to revoke the bail of Jesse Durkee in Windsor County Superior Court on Monday, ruling that prosecutors could not rely solely upon the affidavits of witnesses. Instead, Gray ruled, the state must have had the witnesses present “live” testimony in court.

But Gray, a former Franklin County prosecutor who recently moved from Windsor family court to Windsor criminal court, also amended Durkee’s conditions of release.

Now, Durkee may only visit his residence in South Royalton between noon and 2:30 p.m. on weekdays for property maintenance purposes, and he must be accompanied at “arm’s length” by his grandfather. Durkee is under a court order to reside with his grandparents in Strafford.

Durkee, 38, is charged with breaking into a South Royalton neighbor’s home on Oct. 29 and stealing a crossbow before showing up in a frenzied state at another neighbor’s home reporting that a motorcycle gang was trying to kill him.

On Oct. 23, Durkee was charged with breaking into a different neighbor’s home where the owner repelled Durkee’s entry by firing a gunshot in the intruder’s direction.

Following the second incident, prosecutors sought to have Durkee’s bail revoked, arguing that he had violated his conditions of release on the first set of charges, which among other things prohibited him from possessing a weapon. But Gray put off ruling on the request, saying that the state’s motion did not cite the necessary case law required to support its motion.

Prosecutors a couple days later refiled the motion with the cited case law.

On Monday, Gray again knocked back prosecutors’ attempt to have Durkee’s bail revoked, this time on grounds that a Vermont Supreme Court decision from the early 1990s ruled that a bail revocation hearing required “live testimony” in court from witnesses; relying only upon sworn affidavits were not sufficient grounds in themselves.

At the prior bail revocation hearing, Gray had noted that each sworn statement would need to be backed up in court with testimony.

“I need something more than probable cause,” Gray said in a testy exchange during a 44-minute hearing to Windsor County Deputy State’s Attorney Emily Zukauskas, who submitted multiple sworn affidavits from witnesses regarding Durkee’s Oct. 29 charges.

“I don’t have live case testimony here that would support even the court considering an affidavit as far as a violation,” Gray said.

The sole prosecution witness to testify against Durkee at Monday’s hearing was Beth Willhite, whose home Durkee is alleged to have invaded the night of Oct. 23 by busting through the door while she and her two children were asleep upstairs.

Awakened by the family’s dog, Willhite’s husband, Drew Alinovich, fired a warning shot with a gun in the direction of the intruder, which hit the floor near the door.

Willhite recounted under questioning by Zukauskas the fear she felt while being awakened by the commotion in her house and Durkee screaming about “dead bodies” outside in the yard and calling her and her husband by their first names.

She called Durkee’s alleged back-to-back offenses against neighbors “alarming … I was afraid. I was afraid for my safety, for my children’s safety, my husband’s. I am incredibly angry that we have to be in fear because of this person’s choices,” Willhite testified as she looked directly at Durkee, who was sitting at the defense table with his attorney, Brian Marsicovetere.

But each time Willhite began to talk about Durkee’s second alleged incident a week after her family’s experience, Marsicovetere objected on the grounds that Willhite had no direct knowledge of the Oct. 29 incident and was recounting “hearsay” as told to her by others.

In total, Marsicovetere lodged 11 objections during the course of Willhite’s approximately 25 minutes on the witness stand.

And while Gray said she “appreciated” the witness recounting her personal experience of trauma to the court in regard to the first incident, the witness testimony did not go to the “live testimony” on the second set of charges, which she said was required under the state Supreme Court’s decision.

Willhite, an attorney herself who specializes in civil litigation, said after the hearing in an interview with the Valley News she thought the time spent on the witness stand was valuable because she believes it helped to shape one important decision Gray made from the bench on Monday.

“Having Judge Gray hear how all our neighbors feel — even if it was only hearsay — helped her say, ‘Well, I can’t revoke bail because I don’t have enough evidence to do that, but I can change his conditions not to be in your neighborhood.’ Which is great, I’ll take that as a win.”

Contact John Lippman at jlippman@vnews.com.

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