BARRE — The first-degree murder trial of Jayveon Caballero got underway Thursday, as both sides laid out opening statements and the state began to question its first witnesses.

Caballero, 31, is facing a possible life sentence for the murder of former Vermont Frost Heaves basketball player Markus Austin, who was shot outside his Montpelier home in January 2017, a few hours after Austin and Caballero got into a bar fight in Barre. In the fight, Austin struck Caballero’s girlfriend, breaking her jaw.

As the trial began, the prosecution emphasized two words: disrespect and revenge. They argued that when Austin struck Caballero’s girlfriend at the bar earlier that night, Caballero was disrespected.

They argued Caballero got more and more riled up as he waited at the hospital while his girlfriend was treated for the fracture to her jawbone. That’s why, Assistant Attorney General Elizabeth Anderson said in court, he made call after call after call from the hospital trying to find out where Austin went.

That’s why, prosecutors allege, Caballero waited outside Austin’s apartment so that when he got home later that night, he could shoot and kill him.

“When Markus punched Desiree in the face, the defendant was motivated by revenge, setting the scene for him to execute a plan that culminated in him intentionally firing his gun at Markus and killing him, and for that, he is guilty of first-degree murder,” Anderson said.

When the defense took the stand, attorney Daniel Sedon didn’t dispute many of the prosecution’s facts. He reiterated almost all of them — how the fight at the bar went down, how mad Caballero was while he waited at the hospital, and how Caballero drove to Austin’s house late that night, and waited outside for him to arrive home.

What he did dispute, however, was what Caballero intended to do there. 

When the bullet from Caballero’s gun struck the windshield of Austin’s car early that January morning, it didn’t puncture the driver’s side, Sedon said. It wouldn’t have even hit a passenger, had they been sitting in the car, he said. Instead, Sedon said, the bullet hit the windshield in the left-most, bottom-most corner. It was closer to hitting the pillar of the car then it was to striking the car’s driver, according to Caballero’s attorney.

But because of the way windshields break, the bullet struck the tempered glass, and curved toward Austin, Sedon argued, striking him in the aorta and killing him.

After the shot was fired, Sedon told the jury, Caballero didn’t run off. Instead, he walked toward Austin’s body, saying “You OK, n****? You OK?” Sedon said an eyewitness, who watched the aftermath of the shooting from his apartment window described Caballero then putting his hands on his head, in a kind of “what have I done?” gesture, before ultimately fleeing the state.

“He intended to shoot, but he didn’t intend to kill anybody,” Sedon said. “If it was your intention to cause the death of another human being, you would’ve fired more than once, and you would’ve fired in the direction of that person.”

Sedon argued the outcome of the gunshot was unanticipated and unintended. According to Sedon, it did not meet the standards of “willful,” “intentional,” and “premeditated” that are required for a first-degree murder conviction.

The prosecution also questioned its first witnesses in the trial. They spoke with Austin’s girlfriend and co-worker, neither of whom witnessed the bar fight or the shooting, about how he spent the last day of his life. 

They also questioned a tenant and property manager of the apartment building where Austin was shot, as well as a Montpelier Police Department detective about the layout of the property and what could be discerned from security camera footage. The footage only showed the inside of the building, with one angle showing a small window with a narrow view of the parking lot where Austin died.

Questioning of witnesses will continue Friday, and into the next several weeks. The trial is expected to end around Nov. 19. 

Sixteen jurors were chosen to deliberate the case. Four will be randomly selected as alternates at the end of the trial.

Read the story on VTDigger here: Murder trial begins in 2017 shooting of ex-Frost Heaves player.

Editor’s note: This piece from the SCOV Law Blog</a> is by Amy Davis.

State v. Amidon 2018 VT 99

In 2013, Defendant was charged with touching his daughter’s genital area, sometime in the vicinity of 2005 to 2007. The Court referred to her as C.A., so I shall, as well. The State intended to show evidence that Defendant had been physically and emotionally abusive towards C.A., and that she felt safer when he was incarcerated. We call these “prior bad acts” and the court needs to give special permission for the State to tell the jury about it.

So during a hearing without a jury present, the court decided that the evidence could come in because it would explain why C.A. had held off in reporting the abuse. The court reasoned that she did not feel safe to disclose unless Defendant was in jail. Nobody would tell the jury why defendant was incarcerated. Furthermore, the jury would not be informed of the Defendant’s prior conviction for sexual assault on a minor, and other allegations of sexual assault on children.

First trial was in January 2016, but the jury could not reach a unanimous verdict. Defendant was retried in May 2016. During jury selection, the State asked whether any of the potential jurors had served on a jury beforehand, and if that experience left such a bad taste in their mouth that they could not be fair and impartial this time. Let’s face it, some (and I’m talking a select few) people like jury duty. But most don’t like it, and if you hated it so much that you’re not going to give everybody a fair shake this time, the lawyers want to know.

The defense objected to the State’s questioning, saying that the questions were aimed to discover whether any of the current potential jurors who had already served on a jury were frustrated by the process. The judge ruled that it wasn’t a “pro-State” or “pro-defense” question, but was neutral. And really, if you’re the defendant, you don’t want grumpy people on the jury who hate the system anyway.

The Defendant moved for a mistrial, saying that the State’s questioning prejudiced the jury. The State’s question, in its entirety was: “So of the folks that were on the jury, the—was there anything that came out in the newspaper after, that you read about the trial, that you were completely in disbelief that you didn’t know that when you were in the trial, or that irked you that you didn’t know that, or—so nothing about that process that—because the judge is going to instruct you to not read anything and not follow any newspaper, not to research this independently, and sometimes people are not happy about that, that they can’t look up what happened, and then sometimes they hear things after that they just don’t understand why they weren’t told some of the things they read about. So nobody had that experience where you felt like this was not a fair and impartial jury process?”

The Defendant argued that the question made it seem like the process withheld prejudicial information from the jury. For instance, a simple internet search would have shown that Defendant had a prior conviction. Even if the jurors did not conduct their own research, the question created a “prejudicial suspicion” in the juror’s mind. The court ruled that unless a juror actually got inappropriate information from another source, a mistrial was not warranted.

Prior to swearing in the jury, the court asked if anyone had learned anything about the defendant since they were selected. There was no response. Following the trial, Defendant was convicted and sentenced to serve four to six years. During the trial, testimony about Defendant’s prior incarceration came out, mainly that Defendant’s children did not want to see him, and that C.A. was upset when learning about his release for fear that she would have contact with him.

The SCOV first decides whether the trial court properly ruled that the prosecutor’s questions did not amount to a mistrial. Decisions to grant a mistrial are upheld unless the judge abused his/her discretion in making that ruling. First, the party who asks for the mistrial has to show that anything creating any suspicion has the capacity to influence deliberations. Then, the other side must show that there was no actual effect on the jury. The trial court decided that the Defendant did not meet the burden of showing that this irregular question had the capacity to influence deliberations. Furthermore, the court found there was no evidence that the question actually affected the jury in the way the Defendant thought it might. Since the trial judge is the best person to determine whether a jury has been tainted, the SCOV finds no abuse of discretion.

The next question is whether the trial court erred by allowing in information of the Defendant’s incarceration. The general rule is that you can’t let in information of prior bad acts in order to show that the Defendant acted this way again. So for instance, someone is on trial for burglary, you can’t introduce evidence that this person was convicted of burgling another home. The jury will think, “well, they did it before, so they must have done it now” and convict on that basis. You may, however, introduce this evidence if you’re doing it to show motive, opportunity, intent, etc. Here, the State offered it to explain C.A.’s silence about the abuse while Defendant was incarcerated.

Once the court determines that the evidence is relevant, the court still has to determine that the value it will add to the evidence is outweighed by the prejudicial effect. So, in the burglary scenario, if the evidence of the prior burglary is offered to show that the new burglary was carried out the same way as the previous burglary, the judge may decide that just hearing that evidence is still too prejudicial to award the Defendant a fair trial.

Here’s the deal: all of the prosecution’s evidence in a criminal case is prejudicial to some extent. It reminds me of the scene from “Liar Liar” where Jim Carrey objects and the judge asks why and Carrey says, “Because this is devastating to my case!” If prejudice was the threshold for keeping stuff out, we’d never have a criminal trial, ever. The question is whether it is unfairly prejudicial to the defendant. Is the State seeking this evidence to get sympathy from the juror to convict the defendant? To make the jury mad and want to punish? So the trial court needs to think about why the State is seeking to introduce this evidence, if it’s probative of some fact, and the potential to make the jury angry towards the Defendant.

In this case, the trial court decided that without the information about the incarceration, the jury would be confused as to why C.A. came forward when she did. It explained the gap in reporting. Without it, the jury would be distracted by the missing fact and not focused on the evidence. Beyond that, the trial court instructed the jury as to the limited purpose of the evidence and that they should not consider it as evidence of the defendant’s character. Specifically, that his prior incarceration was not relevant, and nobody should speculate about it. Absent a showing otherwise, everyone assumes the jury followed that instruction.

The last question is whether or not Defendant was given a fair trial because the State was allowed to impeach the defendant’s only witness. His witness was a woman who was in Defendant’s home quite a bit and never saw any interactions between Defendant and the children of molestation. The State pointed out that this witness did not know about her own daughter’s molestation. The court allowed the question but no more on that topic.

Since the trial court has broad discretion in determining the scope of cross examination, no reversal on that question. The question was aimed to show the witness was not as observant as she thought she may be. The single question was fine.

Defendant’s conviction and sentence are affirmed.

Read the story on VTDigger here: SCOV Law Blog: Prosecutors need to justify introducing ‘prior bad acts’ in court.

This story was updated at 7:44 p.m.

BURLINGTON — Attorney General TJ Donovan announced Friday that he would not bring charges against Burlington police officer Cory Campbell in the March death of Douglas Kilburn. 

Donovan said at a press conference that his office determined Campbell’s actions were “reasonable and justified.” 

Kilburn’s widow, Sherry Kilburn, and son Tyler LeBeau, attended the press conference and said they disagreed with Donovan’s decision not to charge Campbell. 

Kilburn, 54, died days after Campbell punched him in the ambulance bay of the University of Vermont Medical Center. The chief medical examiner ruled his death a homicide, a finding which means that Kilburn would not have died if he had not been punched by Campbell. 

Campbell responded to the hospital after getting a call that Kilburn had been acting irate while visiting. Campbell initially helped Kilburn through the hospital to see his wife. 

But after going to another call, Campbell re-engaged with Kilburn, who was then in his car in the ambulance bay arguing with hospital staff.  Kilburn became increasingly agitated after Campbell yelled at him to “shut the fuck up and leave,” and Campbell’s body camera footage showed Kilburn getting out of his car and punching Campbell before Campbell punched him back. 

While Donovan will not bring charges against Campbell, he did acknowledge Friday that Campbell’s behavior escalated the situation.

“Officer Campbell’s use of foul language and antagonistic behavior did not de-escalate the situation which, ultimately, put him in a position where it was necessary to physically defend himself,” Donovan said. 

Sherry Kilburn said she “absolutely” thought Campbell should have faced charges. 

“It really sucks all these cops keep killing people and getting away with it and being called justified,” she said.

Donovan said that Campbell’s use of force was justified as Kilburn threw the first punch and Campbell used a “reasonable amount” of force in response. 

“Officer Campbell was reasonable to believe that he was in immediate danger of unlawful bodily harm and his use of such force was necessary to avoid this danger from continuing,” he said.

Burlington Police Chief Brandon del Pozo said that he thinks Donovan and State’s Attorney Sarah George, who’s office also reviewed the case and declined to press charges, reached the right conclusion. 

“We feel that that’s the right decision, and we’re glad they arrived at it carefully and with due process,” he said.

Campbell has been on administrative duty since shortly after the incident but will be returning to full duty for his next scheduled shift, del Pozo said. 

Campbell has participated in the department’s scheduled deescalation training and patrol procedures training while on administrative duty, del Pozo said.

“He’s had the opportunity to really process and reflect on the incident as well,” del Pozo said. 

Political maneuvering 

The case received additional attention after VTDigger reported that del Pozo and Mayor Miro Weinberger had questioned the medical examiner’s homicide finding to Vermont Health Commissioner Mark Levine. 

Scott administration officials called this “totally inappropriate,” and Donovan reached out to Weinberger to express his concerns about del Pozo’s public statements on the case. 

LeBeau said that Weinberger and del Pozo had interfered in the investigation of his father’s death and that had further corrupted the tragedy.

“I find it appalling that you as the chief of police would interfere with an ongoing investigation with cooperation from the mayor’s office,” LeBeau said. “You take this career path knowing you must always hold yourself to a higher standard. You failed, Mr. del Pozo. Mr. Mayor, you failed. You failed by allowing the Burlington Police Department to use and abuse your office to further their agenda.” 

Del Pozo said that he stood by his previous statements on the issue. Del Pozo and Weinberger denied trying to get the medical examiner to change his findings and said they were simply trying to gather more information. 

“They have our deepest condolences and they’re entitled to their opinion,” del Pozo said. “What we’ve said on the record is our own opinion and it stands.” 

Olivia LaVecchia, Weinberger’s spokesperson, said del Pozo was responding on behalf of the city. 

Donovan said Weinberger and del Pozo stayed out of the investigation after he reached out. Asked if he thought that del Pozo and Weinberger’s behavior was ethical, Donovan said questions on that topic should be directed to the city.  

Donovan’s decision and next steps 

Donovan consulted with Steve Ijames, a longtime officer in Springfield, Missouri, who is a “highly recommended expert on police practices,” Donovan said.

Ijames concluded that Campbell demonstrated “empathy, patience and professionalism” during the first part of his encounter with Kilburn. But Campbell’s language and decision to return to Kilburn’s vehicle after walking away precipitated Kilburn’s assaultive behavior, Ijames found. 

Nevertheless, Ijames concluded that those factors did not justify Kilburn’s decision to punch Campbell. Ijames concluded that Campbell was acting in self-defense. 

Donovan said he felt bringing in an independent expert was necessary although it added to the length of the review. 

The announcement comes weeks after the attorney general’s office announced it would not be pressing charges against an officer who shot and killed a Montpelier man in August. 

In reviewing use of force incidents, Donovan stressed that the law mandates him to look at “a matter of seconds” where the force is being used, not the wider context of situations. 

California enacted a more restrictive use of force law this year which restricts lethal use of force to only when it is “necessary in defense of human life.” 

Donovan said he was not endorsing changing Vermont’s law to mirror California’s, but said he thought there should be a conversation about the topic in the Legislature this session. 

Donovan said Kilburn was in crisis at the hospital and that the situation “could have been avoided.”

“It’s our hope, and I know it’s the Kilburns’ hope, that the Burlington Police Department will continue to commit to deescalation training for their officers to ensure that their department is equipped with the tools they need to effectively and safely respond to members of our community in crisis,” he said. 

Del Pozo said the department has been focusing on limiting uses of force through a number of initiatives, including deescalation training, acquiring an emergency response vehicle and providing officers counseling when needed. 

The department will be conducting an internal investigation that will evaluate the appropriateness of Cambell’s behavior from a procedural level, including his use of profanity, del Pozo said. 

This investigation should take a few weeks and the department will announce its findings, del Pozo said. 

Del Pozo said he was confident in Campbell’s ability to fulfill his duties. 

“We’re confident that he will be able to serve and protect Burlington admirably,” he said. 

Additional reaction 

LeBeau described his father as an “incredibly loving man” who was an avid sports fan and a talented musician. 

“I implore each and every one of us to remember that my dad was so much more than the few seconds that changed our lives forever,” he said. “He was so much more than than the few seconds you all judge.” 

Kilburn loved his family, loved life, and did not deserve the treatment he endured, LeBeau said. 

“I would do anything to just have five minutes back so that I can tell him how much I’m sorry, and how much I loved him,” he said. “I’ll never get that chance. My dad needed help, not handcuffs.”  

Sherry Kilburn said that Campbell had taken “everything” from her and said that she hopes Campbell “rots in hell.” 

“Not only was he my husband, he was my best friend,” Kilburn said. “Campbell took everything away from me.” 

Sherry Kilburn said she believed Campbell should face consequences for his actions. 

“He murdered my husband, and now his life goes on, and my husband can’t,” she said. 

Read the story on VTDigger here: No charges for Burlington officer in Douglas Kilburn’s death.

An Orleans County man beat and burned a disabled adult in his legal custody, according to the Vermont State Police.

Raymond Gadreault, 71, was arrested Wednesday on charges of aggravated domestic assault, abuse of a vulnerable person and cruelty to a person in his custody. 

He appeared in court Thursday and was being held in Northern State Correctional Facility in Newport on $75,000 bail.

The alleged incidents took place between July and September, state police said, in an Orleans County town.

There, the man in Gadreault’s custody, who is in his 40s, said Gadreault had burned his hands and feet with a cigarette, punched him in the groin and eye, thrown him into deep water and deprived him of sleep, according to police records.

VTDigger does not identify victims of domestic abuse, and is not publishing the man’s specific age or the location where the alleged events occurred.

Troopers began investigating Gadreault after they were called to the home on Sept. 16. Gadreault had called them to report the man in his custody for slamming a chair against a window outside, records show.

Gadreault told troopers the man has an intellectual and developmental disability and had been in his custody since July.

When state police arrived, they found the man outside with bruising on his torso, back, feet and shins, as well as around an ear and an eye. He was crying in pain and cold, state police said. 

They called an ambulance, which took him to a nearby hospital.

Gadreault and his wife told troopers that the 71-year-old had recently used “hard restraints” to control the man when he’d “act out,” according to police records, and that’s where some of the bruising came from. 

Gadreault told police he had never struck the man, and said some of the man’s injuries were either self inflicted or already there when he came into his custody.

Troopers spoke to the two EMTs who’d taken the man to the hospital. One told troopers the man said Gadreault hit him daily, according to court documents. The other EMT said she had responded to the residence before to provide medical care to the man’s mother, who said the man was being abused.

Police asked a doctor whether the man’s injuries could be self inflicted. The doctor said some of the scrapes could have been self inflicted, but the large bruises were more consistent with an assault, according to court papers. The doctor also told police the injuries would have healed by then if the man had suffered them in July, as Gadreault had claimed.

One witness told police the man had told him he was frightened. “I’m scared … I need a safe house, safe from Ray,” he said, according to court papers.

The man also told the witness that Gadreault had burned him with a cigarette, according to police records.

When troopers interviewed the man, he asked them to protect him from Gadreault. He said Gadreault hits him and puts cigarettes out on his hand. A trooper looked at the man’s hands and saw small, circular scars about a quarter-inch wide, consistent with the end of a cigarette, records show.

A trooper asked Gadreault to sit down for an interview with police and a representative from Adult Protective Services in October, which Gadreault refused, according to records.

About three weeks later, troopers tried to cite Gadreault on the assault and abuse charges. 

According to their account, Gadreault and his wife refused to answer the door or even acknowledge state police were there. Troopers said they knocked on the window in front of Gadreault, but he remained seated at a computer, ignoring them and two dogs that had begun to bark.

Troopers received a warrant, and arrested him a week later.

How the man came into Gadreault’s custody is unclear in the police records. A trooper spoke with an Adult Protective Services investigator, who said that Gadreault had applied for custody of the man after telling the agency that the man’s mother had sexually abused the man. 

However, around the same time that Gadreault talked to the agency, the investigator told the trooper, the man told the agency that Gadreault had been slapping his genitals.

Read the story on VTDigger here: Orleans County man allegedly beat disabled adult in his custody.

SWANTON – A panel of state lawmakers who help develop prison policies in Vermont hit the road Friday and heard from those directly impacted by their decisions: the corrections officers and prisoners working and living behind bars.

The Joint Legislative Justice Oversight Committee met Friday in the visiting room of the Northwest State Correctional Facility in Swanton.

A panel of corrections officers told the mix of House and Senate lawmakers on the committee of the daily challenges they face, from staffing shortages that require them to work long hours to the lack of accountability and discipline for inmates who act up. 

Prisoners testified of the problems they encounter in a system they say does not provide needed counseling services for those battling addiction or assistance to help inmates succeed once they are freed.

Several inmates also talked of concerns with the furlough program, which allows prisoners to be released after serving the minimum portion of a sentence. They say some who are released are not ready. 

“It has turned into a release valve, a pressure release valve,” inmate Tim Dowd told the committee.

“Things get a little overcrowded, push more people out on furlough – maybe some people who shouldn’t necessarily be released on furlough, not set up for success,” he added. 

“What support should you be having to be successful?” asked Rep. Mary Hooper, D-Montpelier, a committee member. 

“Housing,” Dowd replied.

The lack of adequate housing, the inmates said, keeps many of them behind bars well beyond the minimum portions of their prison sentences. 

Inmate Scott Nichols told the committee that over the years he has been released on furlough about 20 times and brought back into the facility for a variety of reasons, from picking up a new charge to falling back into drug use.

If more time had been spent developing a plan for his release, he said, the chances of him succeeding outside the prison walls would be greater. 

Instead, Nichols said, when he’s been released he’s been provided only with a list of available resources in the community and the offer of Narcan, an overdose reversing drug. 

Prisoners also talked of the medication-assisted treatment program offered to inmates for opioid addiction. They spoke of a lack counseling services to complement that program.

“Inmates could be trained as recovery coaches,” Nichols told the committee. “I would trust these guys to, say, more than to security or mental health or a medical professional.”  

The prisoners did say that there are some inmates who divert the medication or take part in the program only to avoid being shipped to the out-of-state prison facility.

Inmate Matthew Lang called the program a game-changer for him, allowing him to turn his life around from when he entered the facility addicted to drugs. “I don’t want that life,” he told the committee.   

The four inmates who addressed the panel are each elected leaders in their particular prison housing unit. The prison has a total of 247 beds.  

“It’s no secret amongst the population around the state that if you have to do time, this is the place to be,” Dowd said of the Swanton facility. “Mostly, it’s because of the way the staff treats you.”

Asked what made the facility staff different, Dowd said, “They’re respectful.” 

Nichols said while he agreed with that assessment, “a few” of the corrections officers needed improvement.

“Usually rookies,” Dowd added. 

The inmates had less praise for the prison in Newport. “There’s a fight there every Wednesday, or whatever day is commissary,” Dowd said. 

The legislative committee earlier in Friday’s session heard from corrections officers who work at the Swaton facility.

Joseph Aldrich told the panel of the changes he has witnessed over his nearly three decades as a corrections officer at the prison.

“I’ve seen many commissioners come and go, I’ve seen many superintendents come and go,” Aldrich said. 

He added he could recall a time when corrections officers were fighting over who got overtime shifts. More recently, Aldrich said, staffing shortages and mandatory overtime shifts make that is no longer the case.

In a two-week pay period, Aldrich said, he averages almost 40 hours of overtime, another full work week. Those long hours take a toll on a person, he said. 

“It’s probably one of the most stressful parts of the job,” Aldrich said of the workload. “You would think it would be inmates.”  

The corrections officers spoke of the hardship the longer work hours lead to, from having to change plans with a spouse to missing a child’s birthday party or sporting event. 

Currently, of the 107 security staff positions at the facility, 23 are vacant, which includes 11 temporary positions. 

The corrections officer said part of the problem is that newly hired people tend not stay once they realize the long hours and conditions. And new officers often start off working third shift, from 10 p.m. to 6 a.m. 

The starting pay for a correctional officer is about $18 an hour. 

Correctional officers also testified about the need for additional training for them to deal with inmates who suffer from mental illness. 

The meeting with the correctional officers started with Steve Howard, executive director of the Vermont State Employees’ Association, handing committee member a letter he said he plans to send to all state lawmakers. Correctional officers are members of that union.

The letter stated that Vermont’s correctional facilities have become “dysfunctional” and “chaotic,” with “almost a complete lack of accountability for violent, disrespectful, and disobedient actions” of prisoners. 

“This leaves our dedicated COs with the impression that the management cares more about the convicted offenders than they do about their own staff,” the letter stated. “We who want to work in a dangerous environment when you are not sure the leadership of your department cares, or will back you up?”

Prison guards in their testimony agreed that inmates face few repercussions for bad behavior and are rarely charged when drugs and other contraband are found on them.

Howard, speaking after the meeting, said the working conditions for the correctional officers need to be the top priority. 

“Change the working conditions and then we’ll be happy to recruit,” Howard said. 

“We don’t have to worry about whether the inmates have every program they need, and it’s perfectly operating for the inmates,” Howard said. “We have to worry about the people guarding them [having] what they need to be safe and healthy and feel like they are supported.” 

Michael Touchette, Vermont’s corrections commissioner, told the committee he is working to recruit more corrections officers at Swanton and the state’s other facilities. He said the department has recently dedicated a position to focus solely on recruitment. 

“It’s a competitive job market,” he said. “If you want a job today you can get a job.” 

Touchette said that working as a corrections officer is not easy.

“This is not for everybody and we don’t want to sell anybody a bill a goods,” he said. “We need to be honest about how difficult this work can be.”

The commissioner, speaking after the hearing, said he is aware of the corrections officers’ concerns when it comes to prisoner discipline. 

“The inmates are disciplined. I think where the difference is, is that we are not relying as heavily on segregation,” he said. “It has such negative outcomes for people that we put in there, so it creates more harm than good.” 

Touchette added, “We do want to think thoughtfully about how we can hold inmates accountable and keep people safe.” 

Sen. Dick Sears, D-Bennington and a committee chair, said as the meeting came to a close that he believed the meeting behind bars provided the panel with valuable information and perspectives. 

“I think we got real honesty from the staff as well as the inmates,” he said, before adding, “You never know.”  

Read the story on VTDigger here: Lawmakers go to prison to hear from guards, inmates on corrections conditions.

The Deeper Dig is a weekly podcast from the VTDigger newsroom. Listen below, and subscribe on Apple Podcasts, Google Play, Spotify or anywhere you listen to podcasts.

Vermont cities and towns are deciding whether to join the broad-ranging national litigation against companies accused of fueling the opioid crisis. But as local officials weigh their options, the stakes of pursuing a complex legal settlement remain unclear.

Mark Latham, a Vermont Law School professor who’s been following the court proceedings, said the consolidated suit against the drug companies is the largest settlement negotiation since states sued major tobacco companies in the late 1990s. But this case may be even more complicated, since the presiding judge has used an unprecedented maneuver to allow nearly any municipality in the country to participate.

“The judge is trying to encourage other parties that may be contemplating litigation to get this all resolved in one fell swoop, and not have lingering cases for the next 20 or 30 years,” Latham said.

Municipalities will automatically be included in the settlement unless they opt out by Nov. 22. Vermont Attorney General TJ Donovan recommended to local officials last week that they stay in the suit, saying that it may be the easiest way to win settlement money that they could apply to combating the opioid crisis in their communities.

Latham said that based on the tobacco settlement, a potential settlement with the drug companies could be time-consuming and difficult to administer. “Ultimately, a lot of people will probably be somewhat disappointed in the final result,” he said. “But at the end of the day, I think what’s really crucial isn’t necessarily how much money any one particular state or municipality gets, but — is this going to be effective in helping to stop what has been just a crisis throughout the United States.”

**Podcast transcript**

This week: Vermont cities and towns are deciding whether to join the sweeping national litigation against companies accused of fueling the opioid crisis. But as Vermonters weigh their options alongside towns across the country, the stakes for local governments aren’t totally clear.

In September 2018, Vermont Attorney General TJ Donovan announced that the state was suing Purdue Pharma, the company that manufactures the prescription painkiller OxyContin.

TJ Donovan (Vermont Attorney General): The basis of our lawsuit is this. Purdue Pharma lied. They misrepresented. They fabricated. They deceived and they spread falsehoods. And they made billions off of it. And they created a path of destruction that the state of Vermont is still reeling from.

This was the first of three lawsuits against drug companies that Donovan’s office would go on to file. In March of this year, he announced that the state was going after Cardinal Health and McKesson, two distributors that sold tens of millions of opioid pills in Vermont. And in May, he said the state was suing eight members of the Sackler family, the billionaire owners of Purdue.

Donovan: They were engaged in this deception on a daily basis. They were active participants in this deception that has devastated and impacted thousands of Vermonters lives.

These three lawsuits are still ongoing. But while they’ve moved forward, a separate legal action against those same companies has been expanding into Vermont.

Generally, these lawsuits have a lot in common. They accuse the companies that manufactured and distributed opioid painkillers of flooding the country with pills.

Announcer [in 1998 Purdue Pharma promotional video]: Once you’ve found the right doctor, and have told him or her about your pain, don’t be afraid to take what they give you. Often, it will be an opioid medication.

Dr. Alan Spanos [in 1998 Purdue Pharma promotional video]: There’s no question that our best strongest pain medicines are the opioids. But these are the same drugs that have a reputation for causing addiction and other terrible things.

Announcer: Some patients may be afraid of taking opioids because they’re perceived as too strong or addictive. But that is far from actual fact.

Spanos: These drugs, which I repeat are our best, strongest pain medications should be used much more than loud for patients and pain.

The lawsuits say these misleading claims directly led to millions of Americans becoming addicted to opiates, and in Vermont alone, to dozens of people dying from overdoses every year.

Donovan: Vermont has suffered too long. Too many lives have been ruined. This epidemic that we talk about so much in this state started with a falsehood.

But there are key differences here too. The national litigation targets more companies than Vermont’s lawsuits do. Plus, that case is actually about 2,500 separate lawsuits that were consolidated in a federal court in Ohio. This is where things get more complicated.

Mark Latham is a professor at Vermont Law School. He teaches courses about personal injury and product liability law, and he’s been following the national opioid litigation. He said the most likely outcome of all this is that the parties resolve every claim at once, in what’s called a global settlement.

Latham: The whole idea of a global settlement is just to try to put all this litigation, all the claims for all the parties, and put it behind them and reach some type of resolution.

What’s unusual about this case is that the presiding judge in Ohio, Dan Polster, has opened it up beyond the local governments that were already included. He’s now ruled that nearly any municipality in the U.S. can become part of the group working to negotiate a settlement.

Mark said this strategy is meant to benefit everyone – the towns that are fighting the opioid crisis, and the companies that are getting hammered with lawsuits.

Latham: I think what the judge wants to do, as well as all the parties, particularly the defendants, is they would like to see what they can hammer out before the judge in the Northern District of Ohio. Some truly global settlement, so that all these cases, or at least a vast majority of them, are put behind them. I think that’s why the judge is trying to encourage other parties that may be contemplating litigation to get this all resolved in one fell swoop and not have lingering cases for the next, you know, 20, 30 years.

That’s left Vermont towns with a sort of confusing menu of options.

One is that they can join the national litigation by hiring lawyers and filing their own lawsuit. That’s what happened last month in Bennington.

Hurd: Well, it really began sometime ago…

This is Stu Hurd, Bennington’s Town Manager. He said about a year ago, local activists pushed town officials to connect with two private law firms that were working with towns and cities in other states to fight these drug companies. He said the town felt like they had nothing to lose.

Hurd: We were a little concerned about what happens if we join the suit and we are suddenly inundated with discovery from some of these multibillion dollar businesses. But [the law firm’s] position was, that’s a ways off, and we’ll be with you all the way. They are absorbing all of the costs associated with the lawsuit and recover funds only if we do.

Stuart said he knows the state is already suing some of these same companies. But if Bennington files its own suit, the town will get more leeway to use settlement money however it wants.

Hurd: The reason we’re in this — I mean, the AG’s office is working hard to get a settlement, and he has promised to push that money back to the communities. Because if you don’t direct this money directly towards the treatment of addiction and recovery, I think this battle is going to continue to be difficult to win.

So you take that premise and you put it at the local level, we’re saying to ourselves, well, we will get probably a cut of what the state gets. But if we’re in it on our own, whatever we get, other than what we pay out to the attorneys, is ours. We get to determine how to use it. We get to determine how it best suits the needs of our community. And we don’t have to ask the Legislature for permission or for direction of how to use it — because more than likely the Legislature will, even if they follow the AG’s lead, they’ll most likely put guidelines on its use.

What’s changed more recently is that now any municipality in Vermont can join the national litigation without hiring outside attorneys. Last week, the Attorney General sent a letter to local leaders saying this was probably the easiest way for them to get a piece of a potential settlement.

David Allaire: Actually just Monday night, the board, in consultation with myself, have decided that we are going to take the recommendation of the AG, and we are looking to opt in to the bigger lawsuit.

This is Rutland City Mayor David Allaire. He said the city didn’t have the time or energy to enlist an outside law firm – so they’re opting to join the national suit.

Allaire: We didn’t feel at this point we had the ability, financial-wise and manpower-wise, and time and energy to go a private route. We felt as though, with the facts that were presented to us, that this was would be the most beneficial to achieving some of the desired results — which of course is to see if there’s any way to address the negative effects that the opioid epidemic have had in our local communities. We’re convinced this is, at least at this point right now, this is the best way to go.

Here’s how this actually works. Last month, towns and cities around Vermont got paperwork in the mail from the federal court in Ohio. Some of them had no idea this was coming, or what it was. The packet included a form that would let towns opt out. But basically, if they do nothing, they’ll be included in the national suit. The court has already used data about the opioid crisis to determine how a potential settlement would be divvied up.

Allaire: There is a formula that’s being put together. I believe there is actually something out there right now, which would track your community in all the communities and monetize what that amount might be.

But the potential dollar amount of a settlement is still up in the air. I talked to officials in Kirby, a Northeast Kingdom town of less than five hundred people, who said they’re opting out. It just seemed like any payout there would be insignificant.

For TJ Donovan, the attorney general, he said at this point municipalities should do whatever they think is best.

Donovan: I think it’s important that the cities and towns who’ve been on the forefront of this crisis have a role to play if there’s a potential recovery, and to get some money back to the cities and towns.

Earlier this year, the attorney general was not in favor of broadening the national litigation to these cities and towns. In July, he signed onto a letter saying that the maneuver could interfere with the state’s cases against drug companies.

Are those still concerns that you have about this whole legal structure?

Donovan: No, no. I think as this has progressed, we have a framework in place which would address some of those concerns about potential damages or recoveries, and where would the money flow to. Specifically, for me, it’s about Medicaid dollars. Those are state dollars. At the time, back in July, we didn’t have a framework in place, which was really a point of contention. And we’ve been able to develop a framework over time that would address those issues and alleviate those concerns about that touchpoint.

But Donovan said there is still overlap between this national case and the state cases – if it moves toward a true global settlement.

The multi district litigation that now has this negotiation class attached to it, that is completely separate from your office’s three lawsuits — against Purdue Pharma, against the Sacklers, against Cardinal and McKesson, correct?

Donovan: Yes, but. The ongoing negotiations would be if there is a settlement, a global resolution that would satisfy all claims, including those in the MDL.

And in your office’s other three lawsuits?

Donovan: Exactly. So the goal here would be a global resolution.

Mark Latham, the Vermont Law School professor, said there are a lot of unknowns with how exactly a global settlement would work. He said the last time a case this big was settled — back in the late 90s, when the major tobacco companies settled with 46 states — was a difficult negotiation.

Latham: To me, the big takeaway is, it takes a long time to put together one of these types of settlements. I think lesson number two is it’s going to involve a lot of money. Lesson three is you’ve got to have somebody who’s highly regarded, who’s got experience in administering something like this. And I think another lesson is that ultimately, a lot of people will probably be somewhat disappointed in the final result. But at the end of the day, I think what’s really crucial isn’t necessarily how much money any one particular state or municipality gets, but — is this going to be effective in helping to stop what has been just a crisis throughout the United States.

Donovan said the same thing: this complicated legal process may be the only way to reach the goal here — to hold drug companies accountable for their role in the crisis.

Donovan: You have to look at the business chain here. Manufacturers produced these drugs. They marketed them. Distributors distributed them into states. And pharmacies sold them. And when you look at it that way, you are going to look at different points of responsibility, and therefore culpability. That’s the way I look at it. And because this was a business chain, if you will, in the sense that people produced it, people marketed it, people sold it, people distributed it, people sold it to consumers.

Hurd: I mean, when you hear stuff like that, you start to think about — this is one huge, almost mafia-like organization that all worked together to push out the opioids into the communities. And initially, with all of this background data that was false.

Stuart Hurd, from Bennington, put it like this.

One has to stop, or minimize, the production and use of these powerful painkillers. There are some folks who probably need heavy doses of some of these painkillers. They’re incredibly effective. I’ve had knee surgery and back surgery, and they do reduce the pain and discomfort. But I only took them for a day or two. And you when you leave the hospital, you’re given a prescription for 30 days of something like oxycodone or Oxycontin. You know, if you take it for 30 days, and go back for more, more than likely you’re heading down the road to addiction.

That’s how addictive these things are. So in the long run, we’d love to see some of the monies that go to developing these things go from these manufacturers into treatment and recovery for addicts. I don’t think anybody really wants to be addicted to opioids or, in the end, to heroin.
Nobody wants to live that way.

There was one other key development this week in the opioid litigation – this time, in the state of Vermont’s cases against Purdue PHarma and the Sackler family. Back in September, Purdue filed for bankruptcy, which pushed all the cases against them to a federal bankruptcy court in White Plains, New York. According to the Associated Press, the judge in that court on Wednesday delayed further litigation in those cases until April of next year.

The attorney general declined to discuss specifics on the bankruptcy court proceedings.

Donovan: That’s all I will say about that right now. There’s more, many more chapters to be written in this in this negotiation.

Read the story on VTDigger here: The Deeper Dig: Sweeping opioid litigation lands in Vermont.

JW arrived on campus for his second year at Norwich University on Aug. 27, 2016. Within a week, he was back on a plane headed home to the West Coast. His eyes were bloodshot and badly swollen. One side of his nose was collapsed — he would later undergo surgery to fix it — and he still had splitting headaches from a concussion that left a gap in his memory of the assault.

JW, who is African American, believed his race motivated the assault at the hands of at least one football lineman, and possibly others, on the night of his first day back on campus. His suspicion was reinforced by another student running around campus with a Confederate flag on his back the day after the incident, and then a text from a friend saying athletes were using racial epithets when referring to him after his departure. 

But mostly, he thought, the beating was so bad only hate could explain it. “I don’t think that would have happened to a white person, for whatever reason they got into a fight,” he said in an interview last month. (JW asked that only his initials be used in this story, for fear that using his full name would complicate his future career prospects in the military.)

Norwich’s administration had tried to persuade JW and his father, JW Sr., to keep him at the school after the beating. JW was a high-achieving student, attending Norwich on a scholarship through the Air Force Reserve Officer Training Corps, with plans of becoming a pilot. Col. Andrew Hird, commander of Norwich’s AFROTC Detachment 867, wrote a letter to JW as he was considering leaving the university. 

“Cadet W—, you are a talented man with an uncommonly calm leadership trait. I have no doubt you will commission from any AFROTC and do very well in the Air Force,” Hird wrote, adding the “adversity you and others face here isn’t fair.” But, he added, JW’s life would inevitably hit setbacks and adversity, “Especially as a leader, officer and future commander.”

However, JW, who shared Hird’s vision for his future, said he just didn’t feel safe at Norwich. As he and his father were weighing his next move, his assailant was still on campus and playing out his senior season on the football team. “What’s gonna stop him from attacking me again?” JW remembers thinking at the time.

JW had told police about the beating the day after it happened, leading to aggravated assault charges against the football player, Peter “Riley” Kinahan. The school also hired an independent investigator to determine whether race was a motivating factor in the assault. 

Norwich’s president, Richard Schneider, said in an email the university would pursue a separate investigation into JW’s claim that his wrestling coach, Alex Whitney, visited him in the infirmary while the other investigations were happening and pressured him to change his story. Whitney remains the coach at Norwich, and Schneider, who is still president, never told JW or his father what came of that inquest, they said.  

For months, JW Sr. tried to keep the pressure on Northfield law enforcement officials and the Norwich administration to hold to account those involved in his son’s beating, and those who allegedly tried to change his son’s recollection of the night. He flew east and drove to Norwich for a 50-minute meeting with university leaders and others involved in the investigation, gathering what information he could and pressing those assembled to find out more. 

But after returning home to Fremont, a suburb of San Jose, JW Sr. said he stopped hearing back from almost everyone who had been involved in initial efforts to deliver some sort of justice: Schneider, Equal Opportunity Coordinator Stephanie Drew, Vice President of Students Frank Vanacek and Northfield Police Chief Bill Jennings.

Back in California, JW Jr. set his mind to moving on with his life, as angry as he was at his former coach, his assailants, university leaders and even his teammates, who he felt had abandoned him when he needed their help. “It was embarrassing, of course I wanted to get it behind me,” he said. “It was a traumatic experience. I mean, it was my first experience with being a normal college student.”

JW also wanted to salvage his Air Force ROTC scholarship and wrestling career, and worried that speaking out would make that harder to do. “Just try to ignore this and focus on my future,” was his mentality upon returning home, he said. 

He enrolled at Arizona State and planned to try out for the wrestling team. But after his first semester at the school, he lost his ROTC scholarship due to violating the three strikes rule — the off-campus drinking at Norwich was strike one, falling off track with his physical training due to the injuries was strike two, and a D grade in one class was strike three. When he lost the scholarship, he could no longer afford tuition, so he dropped out and moved back in with his dad. 

He eventually got an internship doing cybersecurity work for a tech company in California. When that finished, he took a job with DoorDash delivering takeout food to people’s houses. He recently applied to rejoin the Air Force, and though his dreams of becoming a pilot have faded, he sees a new future in military cybersecurity work. 

When JW saw a news article in September about a group of football players who allegedly beat up three students in their dorm room at Norwich, he decided it was time to tell his story. 

“I was shocked, obviously,” JW said of the news of the assault this fall, in which one student was left with stitches around his eye allegedly over a $5 debt. All four of the alleged assailants were charged and eventually suspended from Norwich, but only after statewide media coverage of the incident. 

“It’s time to talk about it because obviously they didn’t take corrective measures when it happened to me and now it’s happening to other people — and you know it’s just wrong, flat-out wrong,” JW said. “I know how hard that was to get through, no one else really knows beside the victim and, you know, it’s disgusting to see.”

Jungle juice and a bloody beating

JW had a light dinner with his team on his first day back on Norwich’s campus, then made up for it with a bacon cheeseburger at a nearby restaurant later in the evening. After a year restricted to campus with other freshmen, he was happy to accept an invitation to attend an off-campus party that night at a house rented by a wrestling team captain and his friend.

After going out for burgers with the only other black student on the wrestling team, JW headed back to his dorm room. He changed from a denim shirt and wide jeans to a fancier outfit: a white button-down shirt, white jeans and white shoes. 

JW arrived at the party, grabbed a beer and started chatting with friends. He noticed football players casting what he thought were dirty looks in his direction, but gave it little thought. Before long, JW recalls, a junior on the wrestling team came up to him with a chalice filled with “jungle juice,” a mix of Monster energy drinks, vodka and Gatorade powder. 

“It was either chug or spill on my outfit,” JW remembered. Then the junior did it again. “I was drunk, but I wasn’t too drunk” JW grabbed another beer with a teammate, who suggested they shotgun it. They chugged the beers, then JW immediately threw up. 

What happened after that is a matter of significant disagreement among those present. During both the police investigation and the university’s discrimination probe, Kinahan and other football players described JW as the aggressor, saying that he became belligerent after being told to leave the party.

“Kinahan told me W— began getting physical and angry at him,” Officer Christopher Hoar, who investigated the incident, wrote in the affidavit charging Kinahan, noting that Kinahan was 6 feet tall and 265 pounds, while JW was 5’10” and 174 pounds. “Kinahan told me he pushed W— back, and then W— took a swing at him. Kinahan told me he swung back hitting W— twice and W— dropped.” 

Kinahan told a similar story to Tamara Chase, the investigator hired by Norwich to determine whether the assault was racially motivated. Kinahan said he told JW “Don’t touch me,” and then when JW cocked back to punch him he thought “I’m going to have to hit this kid. ​Because, otherwise he’s a collegiate wrestler, like if we go to the ground this isn’t going to end well ​for me. “

Chase described in her report two narratives: one being told by three football players and their close friend, a rugby player, and another by JW and two other students who happened to be on the scene. (Chase declined to discuss her work for this article. However, her report — along with the transcripts of her interviews — was made available to JW Jr. for five days upon its completion. JW Sr. provided a copy of the report and transcripts to VTDigger.)

Chase wrote that the credibility of the football players “is diminished by ​the fact that they have motivation to be less than completely honest on behalf of their friend,” referring to Kinahan, adding that their stories “appeared to be rehearsed, as though there ​had been an advance discussion about what would be reported.”

She said the other two witnesses, Christopher Reardon and John McDermott, who were near the scene after JW vomited, seemed more credible.

“Reardon has no apparent motivation to mischaracterize what happened. ​McDermott, if anything, would have allegiance to Riley,” she wrote in her report, using Kinahan’s nickname. Both Reardon and McDermott dismissed the notion that JW started the fight.

Reardon said he was walking by JW just as he threw up, and caught much of the vomit on his side. JW immediately apologized, and Reardon ushered him outside into the small backyard to clean off. Then, he told Chase, a “big dude” in a tank top ran up to them, shouted “What the f—?” and pulled JW outside. 

Reardon said he tried to follow them. “And as I was entering the ​doorway, four or five other guys rushed up behind me and followed them down,” he said. Another guy stepped in front of the doorway and prevented anyone else from going outside. 

McDermott, who lived at the house where the party was taking place, identified the man in the tank top as William Palanza, a 225-pound linebacker on the Norwich football team. McDermott said JW was “getting a little rowdy, getting a little loud ​and he got sick and vomited on my floor and also I think like five or six people.”

The next thing McDermott saw was “William ​Palanza, he like brings him outside, puts him in a headlock and like wrestles him to the ​ground. And, this other person, Riley Kinahan, like pulled him down, like punches him in the ​face twice, like pretty hard.”

JW wasn’t able to identify his attackers, and says he lost consciousness shortly after being jumped. “Somebody hit me, and then we were tussling then someone else got on top and started choking me from the back,” he recalled during an interview last month. 

When JW came to, blood was pouring out of cuts on his face and covering his shirt, which came off in the brawl. Both sides of his nose had been broken. His eyes would soon become so swollen that nurses at the hospital had to pry them open. He was later diagnosed with a concussion.

JW got to his feet and demanded to know who had assaulted him. Reardon had returned to the scene and, along with others at the party, helped convince JW to head home and figure it out later. JW walked back to his dorm room and briefly laid down in his bed, but started to feel lightheaded and decided to get a ride to Central Vermont Medical Center. Nurses there glued his cuts shut, sent him to get an X-ray and CAT scan and released him before the sun came up. 

The assault was reported to police on Aug. 28, 2016, the day after the party. JW still couldn’t get people who were at the party, including many fellow wrestlers, to tell him who had jumped him. He eventually learned that police had identified Kinahan as the primary assailant. No charges were filed against Palanza.

The private investigator ultimately determined that there was no evidence that discrimination played a part in the assault. “Mere supposition or belief is not enough to establish a violation,” Chase wrote. “The evidence is ​insufficient to establish racial motivation.”

“I mean I’m a wrestler,” he said, “I’m trained in fighting. I’ve taken punches to the face before.”

Two wrestlers who interacted with JW after the assault also said in interviews this month that the claim that JW’s injuries were caused by two punches was absurd. (Both declined to be named out of concern for their relationships with former teammates, coaches and classmates.) 

JW is convinced that Kinahan’s story is a lie, that he took the fall to protect his friends and teammates. He believes three or more football players were involved in the assault. Apart from other witness accounts about a group of guys rushing outside, and another blocking the door, JW says it’s simply not possible that Kinahan did all that damage to his face with two blows. 

“If he only got hit twice in the face, then Mike Tyson hit him,” said one of the wrestlers. “I mean his nose was broken, half his face was swollen, his eye was double the size — it looked like he was hit multiple times.”

“They beat the shit out of him, he easily could have been killed,” said another former wrestler. “Even somebody physically built like a football player could not do that damage in two punches.”

Hoar recommended charging Kinahan with aggravated assault and enabling consumption by minors, after he admitted to purchasing the jungle juice ingredients served at the party, according to the affidavit he filed in the case. 

“I have probable cause to believe Peter Riley Kinahan DOB: 03/10/1995, committed the offense of Aggravated Assault when he punched (JW) Jr. DOB: 02-23-1997 in the face multiple times rendering (JW) unconscious and causing serious bodily injury and disfigurement in the form of facial lacerations and nasal fractures,” Hoar wrote.

Playing through the legal process

JW Sr. hired a lawyer to help him and his son navigate the legal process after the assault. But he said it only made him feel more distant from the situation, as university and court officials began communicating through his attorney. Time went by, but nothing seemed to be happening.

About three months after the assault, Kinahan’s case was diverted, according to court records, allowing him to avoid the criminal process entirely. The charges were eventually reduced to simple assault, and Kinahan completed diversion in 2018, meaning he now has a clean criminal record. 

Kinahan never stopped playing football during his senior year, according to team stats from the season, despite facing felony criminal charges. Two months after the assault, Kinahan appeared in an Instagram post promoting a game against Gallaudet, flexing his beefy arms alongside fellow senior Kurtis Leonard. His player bio page on Norwich’s website boasts that he blocked for a football team that ran for 200 yards per game in the 2016 season. 

JW Sr. said school officials told him after his son was assaulted that they could not take any administrative action against Kinahan until the legal process played out. However, that appears to contradict the university’s handling of the assault that occurred on campus this year. 

At least one of the defendants, football captain Owen McKenna, was allowed to play on homecoming weekend in September — just weeks after being charged with assault and felony burglary. But he was suspended after VTDigger and television stations reported on the situation, and while his case was still playing out in Washington County criminal court. 

JW Sr. said he suspected public pressure made the difference. “I really think that Norwich has been getting away with doing things however they want for so long that they just don’t care,” he said. “Whatever they think will mute people the quickest is the way they try to handle it. They knew I was gonna fly back to California, so they thought ‘We won’t see him again.’” 

Norwich wouldn’t say whether Kinahan faced any internal punishment — or make any comment on the case. Daphne Larkin, the school’s spokesperson, confirmed that Kinahan graduated in May 2018, a year after his classmates. 

Kinahan’s mother said in a Facebook message in October that he would soon enter the Marines. She did not respond to a request from a reporter to speak with Kinahan about his assault case. Calls to a phone numbers listed for Kinahan and Pallanza, and their families were not returned. Two other witnesses who corroborated Kinahan’s account to investigators — Tyler Simmons, a football player, and Curtis Spalt, a rugby player — did not respond to requests for comment sent to their Facebook accounts.

Kinahan’s lawyer during the 2016 case, Jon Valsangiacomo, said details emerged during the legal process that caused the case to be “dismissed,” but that he didn’t recall specifics — and likely wouldn’t be able to speak about them anyway because proceedings become confidential when a case is diverted.

Rory Thibault, the current Washington County state’s attorney, said the case was handled by his predecessor, Scott Williams, who resigned in early 2018 amid odd circumstances that Williams attributed to post-traumatic stress following a grisly murder of a social worker in 2015. 

Thibault said Kinahan’s diversion was completed on Feb. 15, 2018, and that his record was sealed. Clerks at the court briefly allowed a reporter to view the files, before realizing they were supposed to remain private. 

The decision to reduce the charge against Kinahan from aggravated assault to simple assault made diversion more likely. Even as Vermont has encouraged restorative justice practices, particularly for young people, serious violent crimes are usually where prosecutors draw the line when it comes to moving cases out of criminal courts. 

Aggravated assault is defined under Vermont law as a “bodily injury that creates any of the following: (i) a substantial risk of death; (ii) a substantial loss or impairment of the function of any bodily member or organ; (iii) a substantial impairment of health; or (iv) substantial disfigurement.” 

JW said nobody told him why his injuries didn’t meet the threshold for aggravated assault, or even that the charge had been reduced. JW Jr. and JW Sr. both said they were frustrated to hear that Kinahan’s case was diverted. “I would never have agreed to that, my son would never have agreed to that, and our lawyer would never have agreed to that,” JW Sr. said. 

JW Jr. said a victim’s advocate for the court asked him to fill out an impact statement and send in his medical bills, amounting to $2,961.04, which Kinahan reimbursed as part of his diversion agreement. “Eventually they made him do some letter of apology or something,” JW Jr. recalls. He isn’t sure he ever got the letter, and didn’t hold onto it if he did.  

‘Ignorance is bliss’

Alex Whitney was hired in 2012 to turn around Norwich’s struggling wrestling program. An article in the Norwich student newspaper, the Guidon, in 2014, said Whitney, who graduated from the university in 2008, had quickly turned around a program that was on the brink of being canceled just years earlier. 

“Over the past two seasons, there has been a noticeable increase in participation, exposure, and all-around success,” the article said. “I just wanted to get the program back on the right track — the Cadet Way,” Whitney is quoted as saying. “That means excelling and trying your hardest in all phases of life, and wrestling as a whole is great for that.”

JW only wrestled in one scoring collegiate bout his freshman year, falling to Spencer Kiehm of Harvard in the 174-pound weight class. Younger wrestlers generally travel with the team, taking part in exhibition matches before the top wrestlers on the main card begin the scoring matches, which determine which team wins. 

JW was anticipating more main card action, and better results, in his second year at Norwich. “I was expecting to do well academically, expecting to have a chance to fight my way to the starting lineup,” he said. “So when I got back to compete for the starting spot, I think I would have had a good shot, honestly, but what happened happened.”

In the days after JW was assaulted, he started getting splitting headaches. The pain became so intense that he checked himself into the university infirmary. While laid up in an infirmary bed, he says, wrestling coach Alex Whitney paid him a visit — not to console him but to get him to change his story. 

JW says his coach tried to convince him that his memory of events before and after the assault was unclear, and then accused him of threatening to get a gun and shoot the football players — a detail that did not appear to come up in other investigations of the night. 

“He insisted I said I was gonna get a gun and go shoot them, and I was like, no I never said that. And he just really tried to force it down my throat that I said that. And then he said ‘ignorance is bliss’; and started saying he was playing the devil’s advocate,” JW said last month.  

“I understood that as he wanted me to act like I didn’t know the details of what happened and he wanted me to basically not name any of his wrestlers as being a part of it,” he said. 

Norwich has strict policies on students drinking, with only one offense potentially resulting in a suspension, or “marching tours” for cadets — a punishment that involves marching back and forth for hours in the middle of campus. Though wrestlers were not involved in JW’s assault, a number of them were at the party — including Dave Rodgers, the team captain who lived at the house. 

JW Sr. believes that Whitney’s efforts to get his son to stop pressing the issue of who was responsible for the assault, and who knew about it, was to protect other wrestlers from the consequences of increased scrutiny of that night. JW Sr. said he asked Norwich administrators to offer amnesty from alcohol violations to students who could offer information about that night, but was denied. “There’s this code of silence at Norwich University that’s really hard to break,” he said. 

Whitney’s visit to the infirmary was the last straw for JW and his father. JW Sr. wrote to Schneider, Norwich’s president, about Whitney’s visit. He wrote that some of the wrestlers had also told JW to leave them out of his reports to police and investigators on the assault, which JW Jr. corroborated during his interview last month. 

“This is intimidating a witness and we will be reporting this to the Police,” JW Sr. said of Whitney’s visit in the letter to Schneider, which he provided to VTDigger. “This is the reason why I want my son removed from the campus as soon as possible.”

Schneider wrote back to JW Sr. saying he would look into the complaint immediately. “If Coach did as you have reported it would not be right, and would be against our policies. It may be criminal as you suggest also. We will check it out right away. We are working with Northfield PD and Stephanie Drew our title IX coordinator has reached out to you son (sic). We are working to get to the bottom of this with the police. Thanks so much for letting us know,” he wrote, according to a copy of the email provided by JW Sr. (Larkin, the Norwich spokesperson, declined to comment on the email.) 

JW Sr. says he never heard back from Norwich on the result of that investigation. Whitney is still coaching Norwich’s wrestling team. 

Whitney said in a phone call with a VTDigger reporter that he would have to check with the Norwich administration before answering questions about JW. He texted back later referring all questions to Larkin and did not respond to a follow-up text asking specifically if he had tried to convince JW to change his story. 

In an interview with Chase, the private investigator, Whitney denied explicitly trying to get JW to change his story, but does say that he challenged his recollection of the night. 

“I attempted to ​calm W— down and kind of explained to him like, right now your health needs to be first. You ​can’t be a detective,” Whitney recalled saying. 

“One of the things I ​was talking to W— about in the conversation I had in the infirmary was like that it takes two to ​tango,” he added. Whitney said he and JW argued about how drunk he was that night, with JW insisting that he wasn’t particularly intoxicated, and had a clear memory of the night apart from the brief stretch when he was unconscious. 

“I was like, I don’t really believe that,” Whitney said. “From my perspective I believe the escalation story that the ​football players told, and I think the crime was how far it went, how far the injuries went. ​I think that when you have drunk boys around, especially at a school like ours where there’s a lot of ​testosterone, things tend to lead to these places.”

Whitney also said he pressed JW for evidence that the assault was racially motivated, and was unconvinced by his answer that it was evident in the brutality of his attackers. “From everything I’ve ​gathered, I don’t think that race was the catalyst here for the altercation, but I could be wrong,” he told the investigator. 

The coach described JW as “​a great kid,” with “awesome” grades, but added that he “needs help,” and said his life history — his mother struggled with drug addiction and hadn’t been part of his life since he was young — helped explain his angry response to the situation. “I ​think also the expectation of immediate retaliation was also where he was brought up in a little ​rougher of an area,” he said. 

Asked about that theory, JW said: “I wasn’t in a frail psychological state, I was just looking at the facts of the situation.” JW Sr. noted that the family lives in an upscale part of Fremont where the average income is household income is over $100,000. In Northfield, by comparison, the average household income is just north of $60,000. 

One of the wrestlers who spoke on condition of anonymity said that he felt Whitney handled the situation responsibly. “I don’t know what he said to other people but I do know he told us that wasn’t cool in terms of having a party and we were obviously supposed to be supporting our teammates,” he said. 

The other wrestler said JW’s claims about Whitney, which JW told him about at the time, were consistent with the coach’s behavior during other incidents when wrestlers ran into trouble. “It is what he always does. He has this big loud mouth, nice guy, it’s about development and academics first, things that parents like to hear, but as soon as there’s the slightest trouble, he runs.”  

Whitney’s teams have continued to post losing records the past three seasons. However, Whitney says the program has its priorities straight. “We have a young team, but all are what we consider to be the quintessential fit to Norwich,” Whitney said heading into last season, in an article on the Norwich athletics website. “They’re hard working, teachable, and all work with the team in mind first and foremost.”

The Norwich way

Norwich University is celebrating its 200th anniversary this year, marked by banners throughout campus and a series of events that have doubled as something of a farewell tour for Schneider, who has been the school’s president since 1992. 

“One of the longest seated college presidents in the country, Dr. Richard W. Schneider proudly carries on the tradition Norwich University founder Capt. Alden Partridge began 200 years ago of developing ‘citizen soldiers,’” says a biography of Schneider on the university’s website. 

“With Dr. Schneider’s guidance and direction, Norwich University continues to educate and prepare tomorrow’s leaders who excel in the fields of battle as well as in corporate boardrooms,” it continues. 

JW said he had initially hoped to enroll at the Air Force academy, but didn’t get in and learned of Norwich through online ads and an email recruiting him to apply. “It seemed like a place for me to go and grow — become a man, learn my craft,” he recalled. 

Schneider stayed silent as statewide media attention briefly focused on his university this autumn, when a football captain was allowed back on the field despite facing criminal charges of assault and battery. Through Larkin, he declined multiple interview requests about that incident, and again for this story. Norwich’s head football coach, Mark Murnyack, did not return calls seeking comment about both incidents 

JW says he blames many people for what happened to him. “I blame President Schneider first and foremost because he was president of the university and he was aware of the situation. So it’s his responsibility to go down the chain of command and say ‘Hey, athletic director you need to talk to the football coach and have something done about this.’ It’s the football coach’s responsibility to say ‘Hey, you guys are getting drunk at parties beating up underclassmen, you can’t do that on my team.’” 

JW Sr. said his desire for justice has been reignited by the latest assault involving football players, and the stories he has been hearing from other Norwich parents whose children say their own experiences of abuse were mishandled or buried by the administration. 

“The issue,” he said, “is that Norwich continues to cover up behavior of athletes and allow them to play while other students and their families have their lives turned upside down.”

Read the story on VTDigger here: For one-time cadet, recent assault at Norwich University felt painfully familiar.

A Boston man shot and killed more than a week ago while making produce deliveries in Vermont stood in a courtroom almost exactly a year ago where he got a break on his sentence for his role in a large-scale cocaine dealing ring.

Investigators probing the homicide of 44-year-old Roberto Fonseca-Rivera in Rockingham aren’t saying whether they believe his connection to that case played a role in his shooting death on the afternoon of Nov. 1 when he was found in his company truck pulled over alongside Route 103. 

“I’m not going to get into any specifics in that regard,” Vermont State Police Detective Lt. John-Paul Schmidt told reporters during a briefing on the investigation Friday at the state police barracks in Westminster. 

The detective told reporters that since the investigation remains ongoing, there was little he could publicly reveal about the probe, including whether others charged along with Fonseca-Rivera in that drug ring, or those who investigated that case, had been tapped for information.

“We’ve been contacted by some connections or associates from out of state,” Schmidt said.

“With almost every investigation, we work with other agencies,” the detective said before adding, “I can’t really get into who we’re talking to or we’re not talking to for this case.”

Court records in that drug case show that Fonseca-Rivera admitted to his role in the operation. Several documents in his case had been filed under seal. 

A transcript of Fonseca-Rivera’s sentencing hearing from a year ago doesn’t provide any clues into why records in his case were sealed. However, the transcript does reveal he got a much lower sentence than federal guidelines called for.

The transcript also paints a picture of Fonseca-Rivera, a father of three who had been married for more than 20 years, as a hardworking man who moved to Massachusetts from Puerto Rico in 2014 in search of a better life.

“My dad is the motor that keeps this family running,” his son, identified only as Giovanni in court records, said at the Nov. 8, 2018, hearing in federal court in Boston.

“And like I said,” the son added, “me without my father is like not having motivation to push forward and it’s like taking away my other half.”

The son, who at the time was a college student studying criminal justice, concluded his remarks by telling the judge, “Please don’t take him from my side. He’s my everything.”

Judge Denise Casper sentenced Fonseca-Rivera to a year and a day in federal prison after he had earlier pleaded guilty to a charge of conspiracy to distribute cocaine.

Fonseca-Rivera’s attorney had asked for a sentence of no prison time. Prosecutors had sought a sentence of 18 months in prison for him.

The federal sentencing guidelines, which serve in an advisory role for judges, called for a prison sentence of between 46 and 57 months behind bars.

It is not clear when Fonseca-Rivera was released from prison.

Fonseca-Rivera, who had no previous criminal record, was one of five Massachusetts people convicted in that drug case, and he received the least amount of prison time.

Carlos Reyes of Framingham, Massachusetts, described as a leader of the operation who has a lengthy criminal record, received the longest prison sentence of the group, 17½ years.

Jerry O’Neill, a Burlington attorney and former federal prosecutor in Vermont not connected to the case, said the sealing of records combined with a light sentence are indications that a person may have been cooperating with investigators. 

“With the sentence that (Fonseca-Rivera) got I thought to myself that this may well have been somebody who was cooperating and that could possibly connect to his death,” O’Neill said Monday.

“You could tie together all of these things and that certainly would suggest that he was someone who had cooperated with the government and that this could well be a retaliatory killing,” O’Neill said.

O’Neill added that federal courts take great pains to keep information regarding a person’s cooperation from the public record, including sealing documents.  

“The federal courts have come to the realization that they must take fairly strong steps to try to protect the fact that people are cooperating because of the availability of information from Pacer,” he said.

Pacer is the online records management system for federal courts. It allows federal court documents to be publicly available online for a fee.

The drug operation involved shipments of kilos of cocaine through the U.S. Postal Service from Puerto Rico to Massachusetts.

According to the transcript of the sentencing hearing, Fonseca-Rivera’s role was to pick up mailed shipments of cocaine from Puerto Rico at different locations in Massachusetts, which he said he did about a half-dozen times.

Prosecutors in the case said Fonseca-Rivera was recruited into the drug ring by his brother-in-law Angel Morales, who received an eight-year prison term.

Vermont State Police spent Friday afternoon canvassing the area of Route 103 where Fonseca-Rivera was found dead inside his truck one week earlier.

Troopers handed out flyers to motorists, as they sought any information that may aid the investigation.

Schmidt, the state police detective, said Friday that investigators were trying to contact people who typically travel that area of Route 103 at that time to see if they saw anything unusual on the afternoon of the killing.

Fonseca-Rivera, according to police, was working on Nov. 1 for Katsiroubas Produce of Boston, Massachusetts.

He had been in Vermont making deliveries in a company box truck, with his last known location at about 12:15 p.m. that afternoon leaving the 99 Restaurant in Rutland Town before heading south on Route 103 toward Rockingham.

Investigators said they believe the shooting took place sometime between 1 and 1:30 p.m. Friday near where Fonseca-Rivera’s vehicle was located in Rockingham.

An autopsy revealed Fonseca-Rivera had been fatally shot in the head and neck, according to police. The windshield of his truck appeared to have bullet damage.

Fonseca-Rivera addressed the judge during his sentencing hearing a year ago. 

“I always want to push my family forward, not with this situation that got me into trouble, but always working legitimately,” he said.

“I’m sorry,” Fonseca-Rivera added. “I will never be involved in a problem like this. I’m very sorry. This is not what I wanted to give my family.”

Read the story on VTDigger here: Drug case may yield clues into Boston man’s killing in Vermont.

MIDDLEBURY — Nearly two decades ago, Greg Newman of Bristol was charged with marijuana possession. Law enforcement officers searched his house while investigating an incident involving another person and discovered a paper bag containing the drug under his kitchen sink.
\He was charged with drug possession and pleaded guilty to a felony.  Now, 20 years later, Newman wants to remove the charge from his record.

“Even though this is like a black stain way in the back of a shirt I don’t wear anymore, I still want it off my record,” he said. “Especially because I wasn’t involved in the original altercation to begin with.”

In an effort to get the process started, Newman attended a legal expungement clinic at the Addison County Courthouse last Friday to see if he was eligible to have his felony charge cleared. He was among a handful of people who showed up at the clinic in an effort to erase charges ranging from drug possession to petty theft. 

Similar events have been hosted in other counties in Vermont. At each one, volunteer attorneys help people fill out petitions to have qualifying criminal convictions expunged. Lawyers at the clinic were also available to help attendees apply to seal eligible charges, which has a similar effect as expungement.

Mairead O’Reilly, an attorney with Vermont Legal Aid, has been helping to lead expungement efforts across the state, and started organizing countywide clinics in 2017 at the request of state’s attorneys. She said the process starts by clarifying what charges people actually have on their record.

“Our first step is to do a thorough, comprehensive background check on folks and analyze whether a case is eligible under the ever-changing expungement law,” she said.

Most recently, a new state law went into effect in stages on July 1 and Oct. 1 expanding the list of expungeable offenses in Vermont. The new qualifying offenses include some instances of forgery and burglary, and possession of certain drugs such as marijuana, cocaine and heroin.

After the background check, O’Reilly said the next step is checking for outstanding surcharges. While it no longer costs $90 to file an expungement petition, it can still be challenging for people to clear criminal charges if they have not yet paid previous court fees.

“We represent folks who have very low incomes and every criminal conviction is assessed a $147 surcharge,” O’Reilly said. “That amount, that debt, goes to a collection agency and some folks have interpreted that statute to say a case cannot be expunged if the surcharge is still owed.”

O’Reilly said she is currently advocating to change the policy that allows expungements to be held up by outstanding surcharges. In the meantime, clients have to pay. 

The next step in the process is to present the finished petitions to the state’s attorney, who then can agree to, or stipulate to, the expungement.

If the state’s attorney stipulates, the petition goes through. However, if the state’s attorney chooses not to stipulate, O’Reilly said she follows up with clients about whether to submit the petition anyway and risk having it denied by the court.

Dennis Wygmans, the Addison County state’s attorney, said that once he stipulates to a petition, the process moves fairly quickly. Within a month, the expunged charges should disappear. 

As they filled out expungement petitions at Friday’s clinic, O’Reilly and the volunteer attorneys used a special browser plug-in to help speed the process. The plug-in was designed specifically for this purpose by creators at Code for BTV, a brigade of Code for America. Lawyers can download the tool to their web browser, use to it scan court records and automatically fill out expungement petitions with all the same information.

Nick Floersch, the Code for BTV brigade co-captain, said his team met with O’Reilly to ask how technology might help the expungement process.

“What she needed was help making the process of running the clinics faster,” he said. “We had thrown out a bunch of ideas for things we could do with Vermont Legal Aid and we came back to this one as the most relevant.”

This clinic was the first time a larger group of attorneys had tested it out. 

“It’s a huge timesaver,” O’Reilly said. “For someone who files these regularly it cuts the work down by two thirds.”

Even though the clinic had somewhat of a light turnout, volunteers count it as a success, and many spoke about expungement as an important legal tool to help vulnerable members of society get back on their feet.

Newman was able to successfully file an expungement petition and is now waiting on the result. Although he feels that having a felony on his record ultimately did not impact his life very much, he acknowledged that most people do not share that experience. He described expungement as an opportunity for fuller reintegration into society. 

“You want to support people in society to become better members of society,” Newman said. “You don’t want to push people out of society so they feel more drawn to the darker edges of our culture because that’s where they’re accepted, you want to pull those people up into the light.” 

Wygmans expressed a similar sentiment, and hopes to have expungement clinics in Addison County twice a year.

“Especially in this day and age, when it’s so easy to look up a person’s record, I think that this is a really important tool for somebody to be able to move on,” he said. “It’s also part of the restorative process. If you have paid your debt, shouldn’t you get credit for that?”

Read the story on VTDigger here: Legal expungement clinic offers Vermonters a chance to start over.

Rutland City Police Chief Brian Kilcullen said he is allowing city officers involved a fatal shootout with a suspect to view video footage of the incident, even though Vermont State Police have advised against it.

As a result, it appears state police, who are investigating the shooting, won’t interview those officers since it is that agency’s practice not to interview officers in use-of-force probes if they have reviewed dash or body cam footage of the incident.

Christopher G. Louras, 33, the son of former longtime Rutland Mayor Christopher Louras, was killed, according to police, after exchanging gunfire in downtown Rutland with officers on the morning of Oct. 8 following a short pursuit.

Four officers fired on Louras in the shooting in which he also shot at the officers, according to police. A city cruiser dash cam captured video of the shooting.

Kilcullen said Tuesday that he reached his decision after consulting with several parties, including the city’s legal team. He said he is aware the decision would mean that those officers won’t be interviewed as part of the probe by state police.

“That’s my understanding,” the police chief said.

Maj. Dan Trudeau, head of the state police criminal division, could not be reached Tuesday for comment.

Trudeau did say in a previous interview that state police changed how it investigated use-of-force cases involving officers about a year ago.

The state police no longer interview officers in such cases if they had viewed videos of the incident, citing concerns that those officers may “regurgitate” what they saw on the videos instead of relying on their perceptions at the time.

Asked why he reached a decision that ran counter to the state police request, Kilcullen said Tuesday, “Like I said, I took into account the positions of all the parties involved.”

The police chief said he agreed to allow the viewing of the videos at the request of the union representing city police officers.

Only one of the officers involved in the shooting was a member of the union, Cpl. Elias Anderson. The other two city officers, Sgt. Kenneth Mosher and Sgt. Adam Lucia, both in supervisory positions, are not members of the union.

However, Kilcullen said, he is treating them all the same and providing them all access to the video footage. 

Asked if he would have allowed the officers to view the video footage if the union had not made the request, the police chief replied, “No.” 

In addition to the three members of the city force, Deputy Chief Ted Washburn of the Rutland Town Police Department was involved in the shootout.

Kilcullen said Tuesday that Washburn had not requested to view the video footage. 

Police said earlier on the morning of the shootout, the younger Louras fired shots into the front entrance of the city’s police station. More than an hour later, according to police, Louras was spotted by officers, leading to a short pursuit and the exchange of fire with the officers.

Police said Louras was armed with a Smith & Wesson M&P-15 rifle. 

The body of Louras’ cousin, Nicholas Louras, 34, of Rutland, was found later that same day in Salisbury, about a 40-minute drive north of Rutland.

A death certificate stated Nicholas Louras died of gunshot wounds to the head and neck, with his death termed a homicide.

Police have said the deaths of the two cousins are linked. However, police haven’t revealed why they believe there is a connection to the deaths other than the two men are related.

Nicholas Louras is the nephew of both Christopher Louras, the former mayor, and David Allaire, the city’s current mayor.

Rutland is the latest police department to allow its officers to view video footage of an officer-involved shooting.  

Last month, it was revealed that the Montpelier Police Department allowed the officer in a fatal shooting in that city in August to view dash cam footage before being questioned by Vermont State Police. 

The state police had also requested that the Montpelier Police Department not allow that officer to view the footage. As a result, state police did not interview that officer, Cpl. Chad Bean, as part of its probe.

Montpelier Police Chief Tony Facos said he allowed the officer to review the footage so he could provide an “accurate” account of what took place. 

Both the Vermont Attorney General’s Office and the Washington County State’s Attorney’s Office, who conducted separate reviews of the shooting, determined that Bean’s use of deadly force in the shooting of 62-year-old Mark Johnson was justified.

In that case, according to investigators, Johnson pointed a weapon, later determined to be a pellet gun, at the police corporal.

The split between local departments and state police when it comes to use-of-force probes may lead to legislative action.

“This is what has happened so many times over the years, we have local police departments deal with something one way and state police deal with it in another way,” said Sen. Dick Sears, D-Bennington and chair of the Senate Judiciary Committee.   

He said if legislation is needed, he hoped the Vermont Attorney General’s Office or the Vermont Criminal Justice Training Council would come forward with a recommendation. 

Sears said he hadn’t studied the issue enough to say which approach is best in such cases, but added, “I hope they’ll step in and see how we can have some uniformity on this.”

The senator said he thinks it’s important that all officers be treated the same in such cases, no matter which department they worked for.

“It would seem to me that it would be better to have one unified policy,” he said.

Read the story on VTDigger here: Rutland chief allows officers to view video of Louras shootout.

BURLINGTON — The special committee established to review the city Police Department following a series of excessive use of force incidents will be asking for an extension to its end-of-November deadline for policy recommendations. 

The 14-member committee has met six times, but has primarily been gathering information from the department in wide-ranging discussions. Recommendations to the City Council aren’t imminent, committee chair and police commissioner Randall Harp said. 

Harp said during a Tuesday night committee meeting that he would be asking the City Council for more time, but said he did not know how much. 

Councilor Joan Shannon, D-South District, is on the committee and said she felt the committee has been making lateral progress. 

“I think there is a process of collecting information and vetting things that kind of doesn’t look like forward progress, but maybe we have to do some lateral work before we make forward progress,” she said. 

The committee was established by the Burlington City Council in June after two federal lawsuits were filed against the department alleging police brutality. Body camera footage from the incidents showed officers pushing and tackling the African American men who filed the suits. 

Those lawsuits were filed just months after the death of Douglas Kilburn, a Burlington man whose death was ruled a medical homicide after he was punched by Officer Cory Campbell in an altercation at the University of Vermont Medical Center. Attorney General TJ Donovan announced last week that he determined Campbell’s actions were justified. 

In its six meetings, the committee heard presentations from the department on its internal and external organization structure, recruitment, training and use of force policies. 

The committee still plans to discuss the department’s disciplinary process, police information disclosure policies, civilian oversight structures, wellness programs to support officers and data collection. 

Harp said while he was unsure how much longer it would take the committee to finish its work, he did not think it should be more than a year. He said he believed the committee was making progress. 

“We are continuing to get new information that will inform the recommendations we would eventually make,” he said. “We are continuing to discuss new things, which I think does get us closer to providing recommendations in the end.” 

Shannon said she felt like the end of January or early February would be a good time frame for the committee to wrap up its work.  

“Especially with a committee this large, just for everybody at the table to have a few minutes of airtime at each meeting, the end of November was probably never realistic for a committee of this size,” she said. “But there’s still a limit to how much time should be allocated to this process.” 

Councilor Perri Freeman, P-Central District, said the committee’s large scope means it will take time to work through the topics it is examining. 

But she said she hopes the committee retains the sense of urgency the community was feeling when the body camera footage in the lawsuits became public this spring.  

“I don’t want the committee, which will probably take a long time and be slower, fact-finding, community oriented, and get the community’s voice, to lose that sense of urgency,” she said.  

Freeman said the council should continue to bring policy proposals forward on policing as the committee does its work. 

BPD Deputy Chief Jon Murad said the department had spent a lot of time educating the committee about the department’s training and recruiting processes and the expectations and stressors officers face. 

“We have not yet scratched the surface of all the things police do,” he said. “And yet we are asking these intrepid citizens to determine how the police are going to function.”  

Murad said policing is something that takes a “career” to learn, but said committee members had seemed eager to learn and there was a role for community involvement in policing. 

On Tuesday, the committee discussed some ideas for recommendations. These recommendations reflect the ideas of individual members of the committee, and may or may not be supported by the full committee in the end. 

Suggestions included recommending programs that would provide incentives for officers to live in Burlington, encouraging the department to proactively reach out to minority communities and to do implicit bias testing of officers as part of the department’s hiring process. 

Committee member Kevin Rodgers said he would be proposing a recommendation that increases the police commission’s oversight power over the department. 

The committee’s lengthiest discussion surrounded committee member Carter Neubieser’s suggested recommendation that would cap the number of officers in the department at 100 and send additional funding to social service organizations. The department currently has 98 officers but is alloted 105.

“Investing in social services and direct services prevents crime, prevents interactions with police before they happen and before it’s a kind of interaction that may turn into a situation where an officer uses force,” he said. 

Murad said that the idea of lessening the number of officers was “completely contrary” to community policing goals supported by some members of the community. 

“The things that are being described right now in regard to a desire for community policing is not going to be accomplished by decreasing our headcount,” he said. 

The committee tabled the discussion of the recommendations and is going to work through recommendations more in-depth at the end of its process, after covering the remaining topics. The committee also discussed and tabled whether or not to hire a consultant. 

Read the story on VTDigger here: Special Burlington police panel requests additional time for review.

Police are investigating the unexpected death of a young Winooski mother early this month, the overlapping suicide of her fiance, and the circumstances surrounding both deaths that they say are “suspicous.”

Hannah Keyes, 28, was found dead in her apartment by Winooski police on Nov. 2, after her employer, a senior living center in Shelburne called The Arbors, called for a wellness check on her when she didn’t show up for work that day.

When police arrived at the scene, around 10 p.m., they found Keyes dead in the basement apartment at 65 Audet St., where she lived with her fiance, Keith Gaston, and their two young daughters.

Gaston worked at Global Foundries in Essex.

Winooski Police Lt. Justin Huizenga, who has been leading the investigation, said an on-scene examination of the body and the execution of a search warrant at the residence revealed no obvious cause of death. 

Huizenga said even the medical examiner’s initial tests weren’t very fruitful. Investigators are waiting on toxicology results to try to determine exactly how Keyes died. Huizenga said he expects those results in the next week or so.

The apartment was so small, Huizenga said, that the search didn’t take very long, and didn’t turn up anything of interest. But the one clue that police did have, he noted, was Gaston’s disappearance.

“We wanted to locate him to have a discussion as far as what had happened,” Huizenga said. “And we weren’t able to.”

Police were aware that the couple was engaged because of previous law enforcement interactions, Huizenga said. Gaston had a criminal record including an aggravated assault charge for allegedly punching another detained inmate at the Marble Valley Regional Correctional Facility in Rutland. 

Law enforcement was, however, able to locate Gaston’s car — an older Volvo, on West Canal Street. An officer who had been writing parking tickets on Nov. 3 noticed a vehicle that fit the description from the department’s investigation, and reported his find to the team investigating the case.

At that point, Huizenga said, police were able to find surveillance footage showing Gaston on the night of Nov. 1 getting out of his vehicle, walking across the bottom of the Winooski rotary, ultimately jumping in the river, and not resurfacing.

“We talked to the chief of Colchester Technical Rescue, and viewed the video with him,” Huizenga said. “His opinion was that the jump in the video was not survivable.”

He said the combination of flooding from the Halloween rainstorm, the cold temperatures of the water, and the fact that Gaston didn’t resurface all support the conclusion that he died in the water, despite his body having not yet been found. Police noted that there was nothing suspicious found in Gaston’s car.

Huizenga said that while it’s entirely possible that Keyes’ death was also a suicide, the fact that police weren’t able to locate Gaston initially, and then ultimately saw the video of him taking his own life added a few questions to the circumstances surrounding the death.

“Anytime a healthy, 28-year-old person dies and we can’t immediately determine their cause of death, obviously that’s suspicious in and of itself,” Huizenga said.

Once law enforcement receives the final autopsy report for Keyes, Huizenga said they’ll contact Chittenden County State’s Attorney Sarah George, let her know what happened, and let her determine if or how the case moves forward.

The couple’s 3-year-old and 4-year-old daughters are “safe, unharmed, and in a good position now,” he said. The Department for Children and Families initially helped the children, before turning them over to the care of Keyes’ family.

“I think this is an uncommon thing for anywhere in Vermont,” Huizenga said. “It’s not every day, fortunately, that we see circumstances so out of the ordinary like this. It’s certainly not something we like to see.”

Read the story on VTDigger here: Death of Winooski woman and suicide of her fiance puzzling police.

Five years after legislation began mandating police submit data on the race of who they’re stopping, advocates have made that information accessible to the public. But they are fighting to make the collection of race data broader and of better quality.

The new database from Justice For All compiles more than 700,000 traffic stops between 2010 and 2018, showing that black and Hispanic drivers in Vermont are more likely to be stopped by police than white drivers are. The database allows the public to see individual departments’ breakdown by race and whether the stop led to an arrest or ticket.

“Five years into the exercise, this data has never been consolidated into a rollup, a snapshot,” said Mark Hughes, executive director of Justice for All.
In a meeting in Burlington Tuesday, members of the Racial Justice Coalition discussed the long battle to get police departments to share this information. A 2014 law mandated police departments send data to the state, yet agencies have lagged behind, with only a handful providing it for 2018, said Patrick Autilio, who developed the database.

Several people at the meeting also criticized the way police reported the race of those they stopped, relying on their own impression of people’s race and lumping diverse categories — such as Middle Eastern and mixed-race people — into broad groups.

Stephanie Seguino, a University of Vermont economics professor, found statewide disparities in a 2017 study. She said there were several issues with the data, but that shouldn’t be an excuse for not addressing the problems it shows.

“The stories continue to be rampant. But if people tell anecdotes, there’s always a tendency to dismiss them as a special case,” she said.

Rep. Selene Colburn, P-Burlington, hopes to expand this model to the rest of the criminal justice system. She and seven other representatives have sponsored H.284, which would require the Departments of Judiciary, Corrections and State’s Attorneys to collect data on their outcomes by race.

“What Stephanie [Seguino] said about the lack of data being an excuse … that’s something we hear all the time,” Colburn said. “Different players come in and say ‘we don’t know what’s happening here.’”

When her committee tried to get data from the Department of Corrections, it would only provide a point-in-time count, she said. She said a study by the Justice Reinvestment Working Group, a state-appointed review board, has also been delayed because of poor or nonexistent data. 

Another target for improvement, she said, is the way Vermont tracks sentences and plea bargains by race.

Colburn doesn’t know yet if the state will appropriate some spending to help with those improvements. “I don’t think those conversations are happening,” she said. “I hope that if we can get testimony on this bill, we will start that.”

Attorney General TJ Donovan supports the bill conceptually, said Charity Chark, Donovan’s chief of staff.

Chief Peter Mantello of the Castleton Police Department said adding another step in the data collection could prove “challenging” to the small police department. 

The department uses a part-time officer to do administrative tasks like adding traffic stop data to the state database once a month. “But if they mandate it, we have to do it,” he said. 

He said Castleton requires officers to file use-of-force reports, but they don’t currently log them into a spreadsheet. “It protects officers, protects towns, protects victims,” he said. “It’s not allowing any gray areas where there’s questions.”

Mantello urged communities to go talk to the police departments in their area. “I believe that communication and education starts at the local level,” he said.

Read the story on VTDigger here: Advocates index police-reported race data from traffic stops.

A panel of state law enforcement officers, prosecutors and public defenders is recommending that Vermont dramatically expand its expungement laws so that ex-offenders convicted of the vast majority of the state’s felony crimes can eventually scrub their criminal histories. 

The proposal, which was forwarded to lawmakers by Vermont’s Sentencing Commission two weeks ago, would create pathways for people convicted of any nonviolent felonies to erase their criminal charges and block records of their court proceedings from the public.   

The proposal, which will be taken up by legislators in January, comes after Vermont officials already moved to broaden expungement laws this year. 

In May, Gov. Phil Scott signed a bill that added misdemeanors and 14 nonviolent felony crimes — including drug possession charges — to the list of offenses that can be expunged. 

But the commission’s latest expungement proposal would take the reform much further, and add dozens of additional nonviolent felonies and misdemeanors to the list. 

According to James Pepper, the deputy state’s attorney at the Department of State’s Attorneys and Sheriffs and a member of the commission, said the proposal would make Vermont’s expungement reform the broadest in the country.

If the recommendation became law, only about 30 violent felonies and four misdemeanors would no longer be eligible for expungement, he said. 

People convicted of crimes including drug trafficking, non-violent burglary and theft would be able to remove their convictions years after their sentencing. 

Under the proposal, “property” crimes, such as felony theft offenses would be eligible for sealing 10 years after sentencing. They could be expunged 10 years after the sealing. 

Proponents of the reform say expanding expungement eligibility helps remove the hurdle convicted criminals face in finding employment opportunities years after they committed an offense.  

“When you think about Vermont and our declining population, we need every able-bodied person who can work to work,” Pepper said. 

“We don’t need to create these artificial barriers for them through criminal records that are old.” 

Sen. Dick Sears, D-Bennington, the chair of the Senate Judiciary Committee, said Wednesday that he plans on taking up and passing the expungement reform next year. 

While he says lawmakers may tweak the details of the commission’s proposal, he agrees that the scope of the state’s expungement policies need to be broadened. 

“I do think there’s tremendous value to giving people an opportunity to get their records expunged both for them and for society,” Sears said.

“After a certain amount of time, there’s no difference between an ex-offender and the average citizen in terms of committing new crimes.” 

Vermont Legal Aid, which has been conducting expungement clinics across the state, is also pushing lawmakers to eliminate a requirement that ex-offenders pay outstanding administrative court fees to be eligible to remove their convictions. 

In the first five months of 2019, out of the roughly 250 expungement cases Vermont Legal Aid took on, 25% of the people seeking to wipe their convictions couldn’t because they had outstanding administrative fees they could not afford. 

Court officials are pushing back, arguing that the fee in question, a $147 fine imposed on anyone convicted of a crime in Vermont, brings needed revenue into the state’s criminal justice system. 

Chief Superior Court Judge Brian Grearson told the Joint Justice Oversight Committee on Wednesday that he doesn’t believe it’s necessary to pave the way for ex-offenders to both expunge and seal their criminal convictions.  

He believes that sealing records alone will do enough to ensure that ex-offenders can find employment, and that expanding expungement in addition will mean mounting administrative expenses for the state’s judicial system. 

“I don’t know what’s gained by expungement that isn’t available through sealing,” he said. 

But Mairead O’Reilly, an attorney with Vermont Legal Aid, said that allowing people to expunge their records and remove their convictions is an essential part of the process. 

She said that without the ability to erase the charge completely, law enforcement officials will be able to use old criminal convictions to make unfair judgements about citizens. 

“We really don’t want law enforcement to look at these records and think that they mean something when they don’t,” she said. 

Correction: Vermont Legal Aid took on 250 expungement cases in the first five months of 2019, not 60 as originally reported.

Read the story on VTDigger here: Lawmakers hope to widen list of crimes that can be expunged.

Attorney General TJ Donovan announced charges Thursday against a police officer in St. Albans who punched a woman in the face while she was handcuffed in police custody.

Amy Connelly filed a complaint against Sgt. Jason Lawton in August over a March 15 incident in which Lawton allegedly pushed her against the wall of a holding cell at the St. Albans Police Department, and then socked her around the eye. Connelly suffered injuries to her face and bruising around her eye as a result of the blow.

The incident was investigated by the Vermont State Police, with an independent review completed by the Vermont Attorney General’s Office. On Thursday, Lawton was cited to appear in court on suspicion of simple assault, a charge that carries a maximum sentence of a year in prison and a $1,000 fine. 

Connelly, 35, of Highgate, was arrested on March 14 after allegedly ripping off the shirt of a St. Albans bar owner while intoxicated and refusing to leave the bar. 

A video from the police department shows Connelly arguing with Lawton and another officer and repeatedly kicking the cell door. When she stands up at one point, Lawton pushes her back onto the cell bench. She stands up again and appears to kick Lawton in the shin, at which point he pushes her again and then punches her in the face while holding her down with his other hand. 

Connelly was charged with two counts of disorderly conduct, an unlawful mischief charge, and an additional assault charge for the kicking the officer. 

After she was released, Connelly contacted the ACLU of Vermont, which filed a public records request for the body camera footage of Lawton striking her. The video is now public.

St. Albans Police Chief Gary Taylor reported that he didn’t hear about the incident until the ACLU requested the video in early June, prompting him to launch an internal investigation. On July 1, that investigation was concluded and Lawton was fired, though he has appealed the termination through the police union.

Taylor said the department also changed its policy around police use-of-force and will begin reviewing all such incidents automatically.

Read the story on VTDigger here: Attorney general charges St. Albans cop with assault for punching woman.

Bill Stenger, Jay Peak’s former CEO and president who is awaiting trial on federal fraud charges, is asking a judge to allow him to have his passport back so he can make money.

But federal prosecutors are objecting to that request. 

Stenger surrendered his passport in May when he was charged, along with two of his associates, including Ariel Quiros, Jay Peak’s former owner, on charges of wire fraud and making false statements to the government.

The criminal charges, according to the indictment, involved a failed project headed by Stenger and Quiros to build a $110 million biomedical research facility in Newport financed with funds raised through the EB-5 immigrant investor program.

Stenger has pleaded not guilty to the charges against him and was released on a $100,000 appearance bond. He was also ordered to give up his passport. 

Days after the criminal charges were filed, Michael Goldberg, a court-appointed receiver now overseeing Jay Peak, fired Stenger from his job as a consultant to the receivership.

Brooks McArthur, Stenger’s attorney, filed a motion this week in federal court in Vermont asking the judge to allow his client to have his passport back.

Currently, the attorney wrote, Stenger is without income other than Social Security. 

“Given this, Defendant is currently pursuing consulting opportunities – an area he is experienced in – in an effort to gain income to financially support his wife and himself,” McArthur wrote. 

To pursue consulting opportunities, McArthur added, Stenger is finding that travel outside the United States is a main requirement. 

“In order to accept any consulting job offers presented to him,” the attorney added, “Defendant would need to be able to represent that he has a valid passport and has the ability to travel outside of the United States if required to do so.”

McArthur wrote in the filing that Assistant U.S. Attorney Paul van de Graaf, who is prosecuting the case, objects to the request, and it’s the policy of the U.S. Attorney’s Office to object to international travel by those charged with serious offenses. 

McArthur asked the court to set a hearing on the matter.

McArthur could not immediately be reached Thursday for comment. Van de Graaf, through a spokesperson, declined comment.

Read the story on VTDigger here: Stenger wants his passport back; prosecutors say no.

ST. JOHNSBURY — A federal and state crackdown snared 16 people accused of involvement with drug trafficking in the Northeast Kingdom, the U.S. attorney’s office announced Thursday morning.

The month-long operation targeted Newport, St. Johnsbury and surrounding towns. Authorities said they seized about 700 bags of fentanyl and heroin, 100 grams of crack cocaine, two illegal guns and $4,000 in drug proceeds.

“This is the second sustained surge of resources we’ve deployed this year to areas outside of Chittenden County that are hardest hit by the drug crisis,” U.S. Attorney Christina Nolan said at a press conference in St. Johnsbury.

In April, Nolan said authorities conducted a three-day “surge” in Windham County that netted 16 suspects and 1,000 bags of heroin. 

Federal, state, county and local law enforcement officers partnered with federal and state prosecutors in the effort. The charges include drug distribution, possession with intent to sell and maintaining drug-involved premises. 

Eleven of the 16 accused people face federal charges, and the remaining five were arrested on non-drug-related state warrants and violations. Two people have been charged but not arrested, and several of the accused were engaged in trafficking together, Nolan said.

Nolan warned dealers and those who enable them that law enforcement agents will be relentless in their pursuit and prosecution.

“Those who traffic those drugs for profit have blood on their hands,” she said.

Nolan said dealers are wrong to believe they can go undetected in rural places like the Kingdom. 

“To put it in drug-trafficking lingo, it is ‘hot’ everywhere in Vermont,” the prosecutor said, adding later that the region “will never go overlooked.”

Nolan expressed sympathy for people addicted to drugs and urged them to turn in their suppliers and seek treatment.

St. Johnsbury Police Chief Tim Page thanked other agencies for paying attention to the region and asked Gov. Phil Scott to “restore” the power of the statewide drug task force. 

Page said that officials should stop saying that law enforcement can’t arrest their way out of the drug crisis, adding that there is a need to remove bad actors from communities.

Drug Enforcement Administration agent Kevin Black spoke of the need for work outside of law enforcement.

“We remain in the midst of an epidemic that will not end with law-enforcement action alone,” Black said. “Continued efforts in the areas of prevention, treatment and enforcement are what will be needed to stem the tide.”

Nolan said 110 Vermonters died from drug overdoses last year, including six people in the Kingdom. 

The people charged in federal court are:

• Jen Thomspon, 39, of Newport
• Juliana Graves, 49, of Newport
• Elijah Wheeler-Watson, 23, of Clinton, Massachusetts
• Adis Djozo, 26, of Essex Junction
• Alicia Parenteau, 36, of Newport
• Chakeshia Watts, 40, of St. Johnsbury
• Jerry Watts, 62, of St. Johnsbury
• Randy Devoid, 50, of St. Johnsbury
• Shaquille Carter, 26, of New York City
• Christina Thompson, 42, of Lyndonville
• Morgan Cleveland, 39, of Newport

The people arrested on state warrants and violations are:

• Soloman Little, 26, of St. Johnsbury
• Christopher MacKay, 52, of St. Johnsbury
• Mark Houston, 30, of St. Johnsbury
• Michael Barry, 26, of St. Johnsbury
• Michelle Churchill, 34, of St. Johnsbury

Authorities said Carter is a fugitive and Cleveland is at large.

The investigation involved the Bureau of Alcohol, Tobacco, Firearms and Explosives; the Department of Homeland Security; the Drug Enforcement Administration; the Federal Bureau of Investigation; the U.S. Marshals Service; the Vermont Drug Task Force; the Vermont State Police; police from St. Johnsbury, Newport and Lyndonville; the U.S. Border Patrol and U.S. Customs and Border Protection; and state prosecutors from Caledonia and Orleans counties.

Read the story on VTDigger here: Drug operation in Northeast Kingdom leads to 16 arrested or charged.

ST. ALBANS – A Swanton man who pleaded guilty to helping his girlfriend bury and hide the body of the man she is accused of killing will serve at least three years in prison.

“There’s a human decency issue here,” Judge A. Gregory Rainville told 29-year-old Corey Cassani during a sentencing hearing Thursday in criminal court in St. Albans.

“Helping to throw away somebody’s body just violates every standard of human decency,” the judge added. “He was a human being.”

Rainville then sentenced Cassani to the maximum amount allowed under a plea deal, three to seven years in prison on a felony charge of being an accessory after the fact and three misdemeanor counts of violating the conditions of his release.

Cassani had earlier pleaded guilty to those offenses while other charges, including unauthorized burial or removal of a dead body and obstructing justice, were dismissed under the terms of a plea agreement he reached with prosecutors.

Prosecutors did not allege that Cassani played any role in the killing of 35-year-old Troy Ford, whose body was found in the woods in May 2018.

Instead, according to court records, Erika Guttilla, 32, and her mother Carmen Guttilla, 61, each face murder charges in Ford’s death.

Police affidavits filed in the case stated that Carmen and her daughter Erika Guttilla had decided that Ford “had to go” because of his allegedly abusive behavior toward Erika and the whole family, which he also allegedly supplied with heroin and crack cocaine.

Erika Guttilla told police she shot Ford, her ex-boyfriend, in the face as he slept in the family home in Highgate following a night of drinking, according to court filings.

Prosecutors say Carmen Guttilla later helped her daughter wrap up Ford’s body in a carpet and store it in a garbage container on the back porch of the family home for weeks, court records stated.

Cassani, along with Erika and Carmen Guttilla, together moved Ford’s body from the porch to an abandoned playground in the woods nearby, leaving it wrapped in a sheet and placing tree branches over it, police affidavits stated.

All three were arrested in May 2018 shortly after neighbors found the body during a walk in the woods. The fatal shooting, according to police, took place “several months prior.” 

Cassani is the first of the three defendants to be sentenced. Both Carmen and Erika Guttilla have pleaded not guilty to the charges against them and the cases are proceeding to trial.

They both remain held without bail.

Cassani has served about a year and a half behind bars awaiting the resolution of his case, which means he has about another 18 months to serve before he will be eligible for release. 

Raquel Ford of North Carolina, the sister of the late Troy Ford, told the judge during Thursday’s hearing that her brother taught her how to walk and how to ride a bike without training wheels.

“My brother was my big brother,” she added, calling him a “jokester” who loved kids and his family, though he had no children of his own.

“He always wanted to keep me focused on the prize,” Raquel Ford said.

She called for the judge to impose the maximum sentence of at least three years in prison as allowed under the plea for Cassani.  

Raquel Ford also talked about her brother’s body being discarded in the woods.

“Who does that?” she asked. “Why was he treated like that?”

Cassani, standing at the defense table, told the judge he was sorry.

“I want to apologize for my actions,” Cassani said. “I realize that I made some bad decisions.”

He added, “I accept the consequences for that.” 

Cassani’s parents, Nicholas and Brenda Cassani, testified on his behalf, saying that if released their son could live with them and work at the family business as an electrician.

Franklin County Deputy State’s Attorney John Lavoie, the prosecutor, urged the judge to impose the maximum sentence of three to seven years in prison under the plea deal for Cassani.

“Given the amount of credit that he has, your honor, we’re only asking that he remain incarcerated for about a year and a half,” Lavoie said. “Three to seven years, if anything, is on the lenient side.”

Lavoie said Cassani’s criminal record included aggravated assault, drug offenses, and violating release conditions. And even behind bars, Cassani continued to collect disciplinary write-ups, the prosecutor said. 

While locked up in January, Lavoie added, Cassani suffered a drug overdose and had to be revived by Narcan, an overdose reversing drug. 

Attorney Joshua Martin, Cassani’s lawyer, asked the judge to impose a sentence of six months to two years behind bars for his client.

“Corey is not a murderer,” Martin said, adding, “Everything that happened, the taking of a life and disposing of a body, that would have happened whether Corey Cassani was there or not.”

Rainville said he understood that Cassani was not charged in Ford’s death. 

The judge did say, however, that he was considering Cassani’s past criminal record, from an assault to repeated violations of court orders.

“This is not a one-time thing,” Rainville said to Cassani. “I don’t see a lot of bright lights here in the future in terms of turning your behavior around.” 

As a result, the judge said, “That cries out for punishment and also containment to keep you off the streets so you are not hurting people or assisting people who are.” 

Raquel Ford, speaking after the hearing Thursday, thanked the judge for imposing the maximum sentence allowed under the plea deal. 

“My brother wasn’t perfect, he wasn’t an angel,” she said. “But, what happened to him wasn’t right.”  

Read the story on VTDigger here: Judge chastises boyfriend of accused killer: ‘There’s a human decency issue here’.

Editor’s note: This piece from the SCOV Law Blog is by Elizabeth Kruska.

Sullivan v. Menard 2019 VT 76

Not everyone spends a lot of time in criminal court. Even fewer people spend a lot of time handling post-conviction issues that arise. You’d think with the rise of true-crime series, like Making a Murderer or podcasts like Serial and Undisclosed(and all the eleventy jillion others out there; I kid, many of them are interesting) that everyone and their sister is somehow suddenly involved in filing habeas corpus and post-conviction relief cases. But that’s not exactly the case. And although we’ve got great lawyers handling post-conviction relief cases (I may be biased, many of them are my friends), it’s not always the buzz-worthy media-type cases that get filed. 

This is such a case. That doesn’t mean it isn’t important, because it is. And not only that, it’s got an interesting problem that’s a little hard to square.

So, here’s the deal. In Vermont someone gets sentenced after a conviction. And lest there be a thought that a one-year jail sentence means a weekend because of some miracle of “good time” let’s put that to rest. That’s not what happens. In Vermont we have indeterminate sentencing, which means every sentence needs a minimum and a maximum. Someone could get a sentence of one to two years. That means they serve up to one year in jail and at their minimum are eligible to be released. Then, for the balance of that, the person is still supervised by the Department of Corrections. 

There’s a rule, though, that allows certain people to potentially be released prior to their minimum sentences on what’s known as “reintegration furlough.” This is a release that some sentenced defendants may get. Here’s the trick: the Department of Corrections made rules about who is eligible, and also about how to award reintegration furlough to certain defendants. This generally happens a few months prior to a defendant’s release. If you ever hear of a sentenced defendant talking about their “window” this is what they mean. There’s a small window of time prior to the minimum where someone can be released a little early.

Defendants with violent crimes generally aren’t eligible. The defendant here was convicted of a crime that falls under that category.

He hoped to get released on reintegration furlough prior to his minimum sentence, but that got denied. He then filed a motion in the Civil Division, seeking review of the administrative agency’s action. That got denied and he appealed to the Supreme Court.

While the appeal was pending, he hit his minimum sentence and was paroled a little over a week later. That means he left jail, and is now under the supervision of the Department of Corrections as a parolee. 

The state moved to dismiss the appeal as moot, because the relief the defendant was seeking could no longer be granted. He couldn’t get reintegration furlough if he was already out of jail on parole, which is a different supervision status.

The defendant wasn’t pleased by this, and asked SCOV to consider it anyway, and said there was an important public interest in getting the reintegration furlough issue nailed down.

SCOV declined to make a public interest exception to the doctrine of mootness, and dismissed the appeal.

When there’s no live dispute anymore, a case becomes moot and there’s no reason for the case to continue to be in court. Let me give you an example. A few years ago, I represented a man who wanted to get divorced from his wife. While the divorce was pending he suffered a fairly serious medical issue and, unfortunately, he died. Our divorce case now was moot. There were no longer two parties who needed a divorce dispute resolved. 

The defendant in this case argued that the case ought to go forward because this same issue might come up again for him. He essentially argued that he might get in more trouble, and then because of the conviction in this case he would again be precluded from being awarded reintegration furlough. SCOV says this is too speculative.

He also raised, and I think this is the more interesting issue, the fact that because of the timing of how all this works, that aggrieved prisoners who are denied reintegration furlough before their minimums, will never be able to litigate that denial. This furlough is meant to take place approximately six months (or less) before someone’s minimum. Suppose the defendant seeks furlough and is denied. Then he has to exhaust his administrative remedies. Then file a Rule 75 motion in the Civil Division. Then if that’s denied, appeal to the Vermont Supreme Court. This all takes more than six months, which necessarily will always place the defendant beyond his minimum. 

So, this gets dismissed as moot, and the timing issue is left for a different day. 

Read the story on VTDigger here: SCOV Law Blog: Denied early release, inmate appeals.

BURLINGTON — Black individuals were the subjects in more than a fifth of the cases where Burlington police used force over the course of seven years, despite making up only 6% of the city’s population, according to a report the department released Friday. 

Burlington Police Department used force in 1,639 incidents between 2012 and 2018 — during that same time, police made 14,068 arrests and responded to 240,137 incidents, according to the report. 

Four African American men sued the department earlier this year alleging police brutality, and body camera footage released by the department showed officers pushing and tackling the men. The Burlington City Council established a special committee to review police policies, and the committee’s work is ongoing. 

The report emphasized that the department responds to approximately 30,000 incidents and calls for service each year, meaning that force is used in less than 1% of all incidents. Use-of-force incidents have decreased by 40% in the last seven years, according to the report.

“This is a record of which this Department is proud, and on which it can build,” Deputy Police Chief Jon Murad said a statement released with the report.

But that statistic is only one point of comparison. John Jay Criminal Justice Institute professor Jon Shane said the department could also use the amount of force used compared to the number of arrests made as another benchmark.

“It’s not inaccurate, but it depends on what you’re trying to display,” he said.

The rate of force per arrests has risen since 2015, when it was used at a rate of nine per 100 arrests, according to BPD data. It was about 12 per 100 arrests in 2018.

The rate also rose compared to the number of offenses Burlington reported.

Mark Hughes, a member of the police commission and the executive director of racial justice advocacy organization Justice for All, said that the report reflected that the department has a lot of work to do. 

“It’s unfortunate, but not surprising,” he said. “I think we already knew before this report came out that we’ve got some challenges. This is really a systemic racism, a racial justice conversation.” 

Hughes said his organization has advocated for use of force data collection from all of the state’s law enforcement agencies. He said there are two pieces of legislation pending in the Legislature that would mandate all agencies collect use of force data and would mandate appropriate use of force, de-escalation and cross-cultural awareness training. 

“I think Burlington should be recognized for their willingness to provide some level of transparency,” he said.  

Use-of-force subjects were injured in one in five instances, and officers were most likely to use force downtown late at night. 

Hughes said the report reflects higher levels of policing in the Old North End, which has the highest level of use-of-force incidents outside of downtown Burlington.  

 “This is the blackest community as far as the Burlington Police Department is concerned, in their jurisdiction here in the city of Burlington,” he said. “It’s problematic, and emblematic of a larger problem: how are we policing our neighborhoods?”

Hughes said over-policing in the Old North End can translate into more arrests and negative effects in the community. 

“There’s a lot of people that are getting hurt here,” he said. “There’s a lot of folks that are suffering, there are a lot of folks that are experiencing pain and trauma, there’s a lot of families … that are paying an extraordinarily high price.” 

A black person who was arrested between 2012 and 2018 was 22% more likely to have force used on them compared to a white person in that same time period.

Physical force was used more with white suspects than black suspects, though the report also found that officers were more likely to point a firearm at a black subject than a white subject. 

Physical force was used against 64% of white use-of-force subjects and 50% of black use-of-force subjects, while firearms were pointed at 25% of white use-of-force subjects and 39% of black use-of-force subjects. 

The department believes that this disparity is caused by “firearm display only” incidents where firearms are pointed at a subject but no other force is used, according to the report.  

One-third of black use-of-force subjects were involved in this type of incident, which the department attributed to search warrant executions or incidents involving a violent felony suspect. Only one-fifth of white use-of-force subjects were involved in firearm display only incidents. 

Hughes said the fact that 39% of black individuals who have force used against them have a gun pointed at them is “disturbing.” 

“There is a huge level of gravity and a high level of trauma around having a weapon pointed at you,” he said.

The percentage of black individuals who are suspects and arrestees is also higher than the overall black population in the city, as 18% of suspects and 17% of arrestees are black. 

Use of force covers any officer action “beyond that of persuasion.” Both firing a gun and grabbing a suspect’s wrist have to be reported, as does displaying a firearm. Pepper spray and pointing a firearm are the two most common uses of force, according to the report. 

Incidents of force have fallen from a high of 317 in 2012 to 191 in 2018, the lowest number recorded in the last six years. 

Hughes said he believed the city was working on racial justice issues, but that it was too early to see the results.  

“Right now, we’re, unfortunately, pretty early in the onset of actually doing things that could potentially be impactful,” he said. “We just have not been doing them long enough to necessarily see the result. I hope that we see some results.”

This story was updated at 6:30 p.m.

Clarification: The excerpt on this story has been updated to clarify that BPD used force against black subjects at a higher rate than against white subjects, rather than more often.

Read the story on VTDigger here: BPD disproportionately used force on black residents, new report shows.