WHITE RIVER JUNCTION — A Vermont judge tossed out a criminal case charging a Weathersfield man with sexual assault against a juvenile, ruling from the bench on the eve before the five-year-old case was to begin trial that the state prosecutor withheld potentially exculpatory evidence against the defendant.

Windsor County Superior Court Judge John Treadwell called it “beyond unfortunate” in regard to how a former Windsor County deputy state’s attorney handled prosecution in the case by withholding evidence that could have been used by the defense to undermine the accuser’s credibility, going so far as to excoriate the former prosecutor by name.

At the heart of judge’s ruling was a request made by the defendant’s lawyer during the discovery process to Heidi Remick, the Windsor County deputy state’s attorney prosecuting the case at the time, seeking “potential impeachment evidence regarding untruthful statements” by the accuser, according to the dismissal motion filed by the defendant’s attorney. The motion alleged a violation of the Brady rule, which requires prosecutors to release evidence that might help a defendant challenge charges brought against them.

Remick responded to the defense’s request, stating the prosecutor’s office “has no such material in its possession and would not be able to disclose it if it did,” according to a copy of the email filed with the court.

But in fact, as subsequent discovery was to show and as new attorneys assigned to the case in the state’s attorney’s office were forced to acknowledge earlier this month, the state had been in possession of potentially exculpatory evidence, specifically a recantation — and a recantation of the recantation — made by the accuser earlier in her life to New Hampshire’s Division for Children, Youth and Families alleging she had been sexually assaulted by her cousin.

Remick, who worked as a Windsor County deputy state’s attorney from 2003 to 2020, is listed as an adjunct professor at Vermont Law School and now works as chief human resources counsel at Legislative Counsel Bureau, according to her LinkedIn profile. She did not return messages left seeking comment Thursday.

The dismissed case goes back to 2018, when a Weathersfield man, who was 33 years old at the time, was charged with a single count of sexual assault against his adopted stepsister that allegedly occurred at a Windsor campground more than four years earlier in 2014 when he was 29 years old and the alleged victim was 14 years old, according to court records.

The Valley News does not identify alleged victims of defendants charged in a sexual crimes and is not identifying the alleged assailant in this case because the case was thrown out of court and dismissed on grounds that potentially exculpatory evidence was withheld from the defendant.

To be sure, dismissal of the case for Brady violations — in addition to parallel violations in Vermont state law — also does not make a determination in regard to the truthfulness or falseness of the underlying accusation made by the alleged victim.

The state’s case, which had been stuck in the backlog in the court system due to the pandemic, collapsed at the last minute.

As recently as January, Leah Henderson, an attorney with Burke Law in White River Junction who represented the now-37-year-old defendant in the case, suffered a setback when Judge Treadwell, in a 16-page opinion, denied her motion to dismiss the case for failing to have a speedy trial and meet due process rights.

Henderson was then in the final stages of preparing for a Feb. 16 trial date when she reached out to Travis Weaver and Emily Zukauskas, the Windsor County state’s attorneys newly assigned to the case after Remick had left the prosecutor’s office, to confirm, as Remick had previously averred, that there were no records of the accuser having made previously made false allegations.

Six days later, on Feb. 7, in reply, prosecutors sent Henderson state investigation records showing that the alleged victim had made a “false sexual assault claim” against another family member in 2016, contrary to Remick’s prior assertion.

Henderson, in an interview on Thursday, described her reaction as “shocked” when she received the notice about the state having potentially exculpatory evidence.

“I was in the middle of prepping for trial,” Henderson explained, and suddenly she had to simultaneously pivot to write a new motion for dismissal.

Treadwell, who ordered two recesses during the Feb. 15 hearing and even sandwiched in a status conference on another criminal case, expressed incredulousness at the lack of disclosure in evidence by the state.

“The state’s obligation extended to all material in its possession, custody, and control,” Treadwell said, adding that he wanted to be “very clear” that he was not holding at fault attorneys Weaver and Zukauskas who “have fully and completely complied with their obligations as deputy state’s attorneys in this matter.”

“However, it is beyond unfortunate that the previously assigned deputy state’s attorney have not done so here,” he said.

Treadwell called Remick’s claim that the State’s Attorney’s Office had no potentially exculpatory material in its possession “not only an inaccurate response, it is misleading. The state did possess material that falls within that request or is so closely related to that request that the state must have understood that it was obligated to disclose that material.”

Although the dismissal of the case is an embarrassment for prosecutors, Windsor County State’s Attorney Ward Goodenough said his office acted quickly once the matter was flagged.

“When this issue was brought to the attention of the present attorney on the case, he promptly was able to locate material and provided it to the defense immediately upon locating it,” Goodenough said Thursday, adding that the prosecutors “worked hard to prepare this case for trial and were diligent in providing materials and follow-up to the defense when this issue was raised and became known.”

He noted that Remick is “no longer a deputy in this office” and that when he became state’s attorney he assigned a new attorney to handle Special Investigative Unit cases “and those cases continue to be a major priority for our office and we continue to work and review them as we prepare them for trial.”

Contact John Lippman at jlippman@vnews.com.

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